1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2000
/ / Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
----------------------
Commission File Number 1-13102
----------------------
FIRST INDUSTRIAL REALTY TRUST, INC.
(Exact Name of Registrant as Specified in its Charter)
MARYLAND 36-3935116
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
311 S. WACKER DRIVE, SUITE 4000, CHICAGO, ILLINOIS 60606
(Address of Principal Executive Offices)
(312) 344-4300
(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months, and (2) has been subject to such filing requirements
for the past 90 days. Yes /X/ No / /
Number of shares of Common Stock, $.01 par value, outstanding as of August 10,
2000: 38,951,296
2
FIRST INDUSTRIAL REALTY TRUST, INC.
FORM 10-Q
FOR THE PERIOD ENDED JUNE 30, 2000
INDEX
-----
PAGE
PART I: FINANCIAL INFORMATION ----
Item 1. Financial Statements
Consolidated Balance Sheets as of June 30, 2000 and December 31, 1999...................... 2
Consolidated Statements of Operations for the Six Months Ended June 30, 2000
and June 30, 1999.......................................................................... 3
Consolidated Statements of Operations for the Three Months Ended June 30, 2000
and June 30,1999........................................................................... 4
Consolidated Statements of Cash Flows for the Six Months Ended June 30, 2000
and June 30, 1999.......................................................................... 5
Notes to Consolidated Financial Statements................................................. 6-13
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations ........................................................ 14-21
Item 3. Quantitative and Qualitative Disclosures About Market Risk............................ 21
PART II: OTHER INFORMATION
Item 1. Legal Proceedings ................................................................... 22
Item 2. Changes in Securities ............................................................... 22
Item 3. Defaults Upon Senior Securities...................................................... 22
Item 4. Submission of Matters to a Vote of Security Holders ................................. 22
Item 5. Other Information ................................................................... 22
Item 6. Exhibits and Report on Form 8-K...................................................... 22
SIGNATURE ...................................................................................... 24
EXHIBIT INDEX .................................................................................. 25
1
3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
FIRST INDUSTRIAL REALTY TRUST, INC.
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
(UNAUDITED)
June 30, December 31,
2000 1999
---------------- ----------------
ASSETS
Assets:
Investment in Real Estate:
Land ................................................................. $ 349,050 $ 383,938
Buildings and Improvements ........................................... 1,828,183 2,131,807
Furniture, Fixtures and Equipment .................................... 1,437 1,437
Construction in Progress ............................................. 52,826 80,410
Less: Accumulated Depreciation ....................................... (201,125) (211,456)
---------------- ----------------
Net Investment in Real Estate ................................ 2,030,371 2,386,136
Real Estate Held for Sale, Net of Accumulated Depreciation and
Amortization of $37,774............................................... 390,245 --
Cash and Cash Equivalents ............................................. 5,509 2,609
Restricted Cash ....................................................... 28,257 2,352
Tenant Accounts Receivable, Net ....................................... 11,583 9,924
Investments in Joint Ventures ......................................... 6,078 6,408
Deferred Rent Receivable .............................................. 17,325 17,137
Deferred Financing Costs, Net ......................................... 12,963 11,581
Prepaid Expenses and Other Assets, Net ................................ 89,416 90,816
---------------- ----------------
Total Assets ................................................. $ 2,591,747 $ 2,526,963
================ ================
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Mortgage Loans Payable, Net ........................................ $ 103,783 $ 104,951
Senior Unsecured Debt, Net ......................................... 948,735 948,688
Acquisition Facility Payable ....................................... 161,800 94,000
Accounts Payable and Accrued Expenses .............................. 73,623 78,946
Rents Received in Advance and Security Deposits .................... 22,213 22,014
Dividends/Distributions Payable .................................... 28,601 28,164
---------------- ----------------
Total Liabilities ............................................ 1,338,755 1,276,763
---------------- ----------------
Minority Interest ..................................................... 188,448 190,974
Commitments and Contingencies ......................................... -- --
Stockholders' Equity:
Preferred Stock ($.01 par value, 10,000,000 shares authorized,
1,650,000, 40,000, 20,000, 50,000 and 30,000 shares of Series A, B,
C, D and E Cumulative Preferred Stock, respectively, issued
and outstanding at June 30, 2000 and December 31, 1999, having
a liquidation preference of $25 per share ($41,250), $2,500 per
share ($100,000), $2,500 per share ($50,000), $2,500 per share
($125,000) and $2,500 per share ($75,000), respectively............ 18 18
Common Stock ($.01 par value, 100,000,000 shares authorized, 38,901,761
and 38,152,811 shares issued and outstanding at June 30, 2000 and
December 31, 1999, respectively)................................... 389 382
Treasury Shares, at cost (17,500 shares at June 30, 2000)............. (477) ---
Additional Paid-in-Capital............................................. 1,196,363 1,177,364
Distributions in Excess of Accumulated Earnings........................ (119,962) (114,451)
Unearned Value of Restricted Stock Grants.............................. (11,787) (4,087)
---------------- ----------------
Total Stockholders' Equity.................................... 1,064,544 1,059,226
---------------- ----------------
Total Liabilities and Stockholders' Equity.................... $ 2,591,747 $ 2,526,963
================ ================
The accompanying notes are an integral part of the financial statements.
2
4
FIRST INDUSTRIAL REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
Six Months Six Months
Ended Ended
June 30, 2000 June 30, 1999
---------------- ----------------
Revenues:
Rental Income....................................................... $ 148,636 $ 149,074
Tenant Recoveries and Other Income.................................. 40,778 40,347
---------------- ----------------
Total Revenues................................................... 189,414 189,421
---------------- ----------------
Expenses:
Real Estate Taxes................................................... 29,436 29,534
Repairs and Maintenance............................................. 8,829 9,849
Property Management................................................. 7,133 5,600
Utilities........................................................... 4,929 5,204
Insurance........................................................... 621 435
Other............................................................... 3,078 2,015
General and Administrative.......................................... 8,229 6,496
Interest Expense.................................................... 40,076 40,302
Amortization of Deferred Financing Costs............................ 899 604
Depreciation and Other Amortization................................. 35,162 34,373
---------------- ---------------
Total Expenses................................................... 138,392 134,412
---------------- ---------------
Income from Operations Before Equity in Income of Joint Ventures and
Income Allocated to Minority Interest............................... 51,022 55,009
Equity in Income of Joint Ventures..................................... 119 246
Income Allocated to Minority Interest.................................. (8,109) (7,695)
---------------- ----------------
Income from Operations................................................. 43,032 47,560
Gain on Sales of Real Estate........................................... 15,931 8,342
---------------- ----------------
Net Income............................................................. 58,963 55,902
Less: Preferred Stock Dividends....................................... (16,422) (16,422)
---------------- ----------------
Net Income Available to Common Stockholders............................ $ 42,541 $ 39,480
================ ================
Net Income Available to Common Stockholders Per Weighted Average
Common Share Outstanding:
Basic............................................................ $ 1.10 $ 1.04
================= ================
Diluted.......................................................... $ 1.10 $ 1.04
================= ================
The accompanying notes are an integral part of the financial statements.
3
5
FIRST INDUSTRIAL REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
Three Months Three Months
Ended Ended
June 30, 2000 June 30, 1999
---------------- ----------------
Revenues:
Rental Income.......................................................... $ 74,507 $ 73,787
Tenant Recoveries and Other Income..................................... 19,759
---------------- ------------------
Total Revenues............................................... 94,266 93,993
---------------- ------------------
Expenses:
Real Estate Taxes...................................................... 14,131 14,706
Repairs and Maintenance................................................ 4,275 4,136
Property Management.................................................... 3,829 2,794
Utilities.............................................................. 2,314 2,284
Insurance.............................................................. 433 203
Other.................................................................. 1,624 1,000
General and Administrative............................................. 4,568 3,402
Interest Expense....................................................... 20,291 20,223
Amortization of Deferred Financing Costs............................... 471 339
Depreciation and Other Amortization.................................... 17,541 17,304
---------------- ------------------
Total Expenses.............................................. 69,477 66,391
---------------- ------------------
Income from Operations Before Equity in Income of Joint Ventures and
Income Allocated to Minority Interest.................................. 24,789 27,602
Equity in Income of Joint Ventures........................................ 88 120
Income Allocated to Minority Interest..................................... (4,310) (4,252)
---------------- ------------------
Income from Operations.................................................... 20,567 23,470
Gain on Sales of Real Estate.............................................. 10,057 6,797
---------------- ------------------
Net Income................................................................ 30,624 30,267
Less: Preferred Stock Dividends.......................................... (8,211) (8,211)
---------------- ------------------
Net Income Available to Common Stockholders.............................. $ 22,413 $ 22,056
================ ==================
Net Income Available to Common Stockholders Per Weighted Average
Common Share Outstanding:
Basic......................................................... $ .58 $ .58
================ ==================
Diluted....................................................... $ .58 $ .58
================ ==================
The accompanying notes are an integral part of the financial statements.
4
6
FIRST INDUSTRIAL REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
Six Months Ended Six Months Ended
June 30, 2000 June 30,1999
------------------- -------------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income................................................. $ 58,963 $ 55,902
Income Allocated to Minority Interest ..................... 8,109 7,695
------------------- -------------------
Income Before Minority Interest............................ 67,072 63,597
Adjustments to Reconcile Net Income to Net Cash Provided
by Operating Activities:
Depreciation........................................... 31,693 31,412
Amortization of Deferred Financing Costs............... 899 604
Other Amortization .................................... 4,831 3,094
Provision for Bad Debt................................. 50 ---
Equity in Income of Joint Ventures..................... (119) (246)
Distributions from Joint Ventures...................... 119 246
Gain on Sales of Properties............................ (15,931) (8,342)
Increase in Tenant Accounts Receivable and Prepaid
Expenses and Other Assets, Net.................... (17,561) (7,178)
Increase in Deferred Rent Receivable................... (766) (2,515)
Decrease in Accounts Payable and Accrued Expenses and
Rents Received in Advance and Security Deposits... (1,449) (5,967)
Decrease (Increase) in Restricted Cash................. 53 (625)
-------------------- --------------------
Net Cash Provided by Operating Activities.... 68,891 74,080
-------------------- --------------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases and Additions to Investment in Real Estate....... (176,636) (95,245)
Net Proceeds from Sales of Investment in Real Estate....... 125,421 83,267
Contributions to and Investments in Joint Venture.......... (37) (778)
Distributions from Joint Venture........................... 367 119
Repayment of Mortgage Loans Receivable..................... 14,564 199
Increase in Restricted Cash ............................... (25,958) (27,917)
-------------------- --------------------
Net Cash Used in Investing Activities............ (62,279) (40,355)
-------------------- --------------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net Proceeds from Exercise of Employee Stock Options....... 6,667 59
Repayments on Mortgage Loans Payable....................... (1,130) (1,074)
Purchase of Treasury Shares................................ (477) ---
Purchase of U.S. Government Securities..................... (1,244) ---
Proceeds from Acquisition Facility Payable................. 111,000 56,600
Repayments on Acquisition Facility Payable................. (43,200) (33,300)
Dividends/Distributions.................................... (56,625) (54,227)
Preferred Stock Dividends.................................. (16,422) (16,422)
Cost of Debt Issuance...................................... (2,281) (646)
-------------------- --------------------
Net Cash Used in Financing Activities .......... (3,712) (49,010)
-------------------- --------------------
Net Increase (Decrease) in Cash and Cash Equivalents.......... 2,900 (15,285)
Cash and Cash Equivalents, Beginning of Period................ 2,609 21,823
-------------------- --------------------
Cash and Cash Equivalents, End of Period ..................... $ 5,509 $ 6,538
==================== ====================
The accompanying notes are an integral part of the financial statements.
5
7
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND PER SHARE DATA)
1. ORGANIZATION AND FORMATION OF COMPANY
First Industrial Realty Trust, Inc. (the "Company") was organized in the
state of Maryland on August 10, 1993. The Company is a real estate investment
trust ("REIT") as defined in the Internal Revenue Code. The Company's operations
are conducted primarily through First Industrial, L.P. (the "Operating
Partnership") of which the Company is the sole general partner with an
approximate 84.3% ownership interest at June 30, 2000. As of June 30, 2000, the
Company owned 975 in-service properties located in 24 states, containing an
aggregate of approximately 68.3 million square feet of gross leasable area
("GLA") and two properties held for redevelopment. Of the 975 in-service
properties owned by the Company, 819 are held by the Operating Partnership, 99
are held by limited partnerships in which the Operating Partnership is the
limited partner and wholly-owned subsidiaries of the Company are the general
partners, 52 are held by limited liability companies of which the Operating
Partnership is the sole member and five are held by an entity in which the
Operating Partnership owns a 95% economic interest. The Company, through
wholly-owned limited liability companies of which the Operating Partnership is
the sole member, also owns 10% equity interests in, and provides asset and
property management services to, two joint ventures which invest in industrial
properties (the "September 1998 Joint Venture" and the "September 1999 Joint
Venture"). Minority interest in the Company at June 30, 2000 represents the
approximate 15.7% aggregate partnership interest in the Operating Partnership
held by the limited partners thereof.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying unaudited interim financial statements have been prepared
in accordance with the accounting policies described in the financial statements
and related notes included in the Company's 1999 Form 10-K and should be read in
conjunction with such financial statements and related notes. The following
notes to these interim financial statements highlight significant changes to the
notes included in the December 31, 1999 audited financial statements included in
the Company's 1999 Form 10-K and present interim disclosures as required by the
Securities and Exchange Commission.
In order to conform with generally accepted accounting principles,
management, in preparation of the Company's financial statements, is required to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities as of June 30,
2000 and December 31, 1999, and the reported amounts of revenues and expenses
for each of the six months and three months ended June 30, 2000 and 1999. Actual
results could differ from those estimates.
In the opinion of management, all adjustments consist of normal recurring
adjustments necessary for a fair statement of the financial position of the
Company as of June 30, 2000 and the results of its operations and its cash flows
for each of the six months and three months ended June 30, 2000 and 1999.
Tenant Accounts Receivable, Net:
The Company provides an allowance for doubtful accounts against the portion
of tenants accounts receivable which is estimated to be uncollectible. Tenant
accounts receivable in the consolidated balance sheets are shown net of an
allowance for doubtful accounts of approximately $2,050 and $2,000 as of June
30, 2000 and December 31, 1999, respectively.
Reclassification:
Certain 1999 items have been reclassified to conform to the 2000
presentation.
6
8
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND PER SHARE DATA)
3. INVESTMENTS IN JOINT VENTURES
During the six months ended June 30, 2000, the Company, through
wholly-owned limited liability companies in which the Operating Partnership is
the sole member, received, in the aggregate, approximately $1,412 in asset
management and property management fees from the September 1998 Joint Venture
and the September 1999 Joint Venture. The Company, through a wholly-owned
limited liability company in which the Operating Partnership is the sole member,
received distributions of approximately $486 from the September 1998 Joint
Venture. As of June 30, 2000, the September 1998 Joint Venture owned 146
industrial properties comprising approximately 7.5 million square feet of GLA
and the September 1999 Joint Venture owned 39 industrial properties comprising
approximately 1.2 million square feet of GLA.
4. MORTGAGE LOANS, NET, SENIOR UNSECURED DEBT, NET AND ACQUISITION FACILITY
PAYABLE
Mortgage Loans, Net: On December 29, 1995, the Company, through an entity
in which the Operating Partnership is the sole limited partner and a
wholly-owned subsidiary of the Company is the general partner, entered into a
$40,200 mortgage loan (the "1995 Mortgage Loan"). In June 2000, the Company
purchased approximately $1.2 million of U.S. Government securities as substitute
collateral to execute a legal defeasance of approximately $1.2 million of the
1995 Mortgage Loan (the "1995 Defeased Mortgage Loan"). The 1995 Defeased
Mortgage Loan requires monthly principal and interest payments based upon a
28-year amortization schedule. The interest rate under the 1995 Defeased
Mortgage Loan is fixed at 7.22% per annum. The terms of the legal defeasance
require the Company to use the gross proceeds from the maturities of the U.S.
Government securities to paydown and subsequently retire the 1995 Defeased
Mortgage Loan in January 2003. Upon the execution of the legal defeasance, one
of the 23 properties collateralizing the 1995 Mortgage Loan was released and
subsequently sold .
Acquisition Facility:
In June 2000, the Company amended and restated the 1997 Unsecured
Acquisition Facility and entered into a $300,000 unsecured revolving credit
facility (the "2000 Unsecured Acquisition Facility") which initially bears
interest at LIBOR plus .80% or the Prime Rate at the Company's election and
provides for interest only payments until maturity. Under the 2000 Unsecured
Acquisition Facility, the Company has the right, subject to certain conditions,
to increase the aggregate commitment under the 2000 Unsecured Acquisition
Facility up to $400,000. The Company may borrow under the 2000 Unsecured
Acquisition Facility to finance the acquisition and development of additional
properties and for other corporate purposes, including to obtain additional
working capital. The 2000 Unsecured Acquisition Facility contains certain
financial covenants relating to debt service coverage, market value net worth,
dividend payout ratio and total funded indebtedness. The 2000 Unsecured
Acquisition Facility matures on June 30, 2003.
7
9
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND PER SHARE DATA)
4. MORTGAGE LOANS, NET, SENIOR UNSECURED DEBT, NET AND ACQUISITION FACILITY
PAYABLE
The following table discloses certain information regarding the Company's
mortgage loans, senior unsecured debt and acquisition facility payable:
OUTSTANDING BALANCE AT ACCRUED INTEREST PAYABLE AT INTEREST RATE AT
------------------------------ ------------------------------ ----------------
JUNE 30, DECEMBER 31, JUNE 30, DECEMBER 31, JUNE 30, MATURITY
2000 1999 2000 1999 2000 DATE
------------ ------------- ------------ -------------- --------------- ---------
MORTGAGE LOANS PAYABLE, NET
1995 Mortgage Loan............ $ 37,648 $ 39,099 $ 151 $ 165 7.220% 1/11/26
1995 Defeased Mortgage Loan... 1,208 --- 5 --- 7.220% 1/11/03
CIGNA Loan. .................. 34,300 34,636 214 216 7.500% 4/01/03
Assumed Loans................. 8,173 8,343 --- 9.250% 1/01/13
LB Mortgage Loan II........... 705 705 --- 8.000% (1)
Acquisition Mortgage Loan I... 3,446 3,591 --- 8.500% 8/01/08
Acquisition Mortgage Loan II.. 7,533 7,630 --- 7.750% 4/01/06
Acquisition Mortgage Loan III. 3,284 3,350 --- 8.875% 6/01/03
Acquisition Mortgage Loan IV.. 2,392 2,423 --- 8.950% 10/01/06
Acquisition Mortgage Loan V... 2,761 (2) 2,793 (2) --- 9.010% 9/01/06
Acquisition Mortgage Loan VI.. 974 (2) 991 (2) --- 8.875% 11/01/06
Acquisition Mortgage Loan VII. 1,359 (2) 1,390 (2) --- 9.750% 3/15/02
----------- ------------ ------------- -----------
Total ........................ $ 103,783 $ 104,951 $ 370 $ 381
=========== ============ ============= ===========
SENIOR UNSECURED DEBT, NET
2005 Notes ................... $ 50,000 $ 50,000 $ 383 $ 383 6.900% 11/21/05
2006 Notes ................... 150,000 150,000 875 875 7.000% 12/01/06
2007 Notes ................... 149,964 (3) 149,961 (3) 1,457 1,457 7.600% 5/15/07
2011 Notes ................... 99,494 (3) 99,470 (3) 942 942 7.375% 5/15/11 (4)
2017 Notes ................... 99,833 (3) 99,828 (3) 625 625 7.500% 12/01/17
2027 Notes ................... 99,869 (3) 99,867 (3) 914 914 7.150% 5/15/27 (5)
2028 Notes ................... 199,779 (3) 199,776 (3) 7,009 7,009 7.600% 7/15/28
2011 Drs ..................... 99,796 (3) 99,786 (3) 1,553 1,553 6.500% (7) 4/05/11 (6)
----------- ------------ ------------- -----------
Total ....................... $ 948,735 $ 948,688 $ 13,758 $ 13,758
=========== ============ ============= ===========
ACQUISITION FACILITY PAYABLE
1997 Unsecured Acquisition
Facility.................... --- $ 94,000 $ --- $ 663 (8) (8)
=========== ============ ============= ===========
2000 Unsecured Acquisition
Facility.................... $ 161,800 $ --- $ 34 $ --- 7.5400% 6/30/03
=========== ============ ============= ===========
(1) The maturity date of the LB Mortgage Loan II is based on a contingent
event relating to the environmental status of the property collateralizing
the loan.
(2) At June 30, 2000, the Acquisition Mortgage Loan V, the Acquisition Mortgage
Loan VI and the Acquisition Mortgage Loan VII are net of unamortized
premiums of $239, $53 and $49, respectively. At December 31, 1999, the
Acquisition Mortgage Loan V, the Acquisition Mortgage Loan VI and the
Acquisition Mortgage Loan VII are net of unamortized premiums of $258, $57
and $64, respectively.
(3) At June 30, 2000, the 2007 Notes, 2011 Notes, 2017 Notes, 2027 Notes, 2028
Notes and the 2011 Drs. are net of unamortized discounts of $36, $506,
$167, $131, $221 and $204, respectively. At December 31, 1999, the 2007
Notes, 2011 Notes, 2017 Notes, 2027 Notes, 2028 Notes and the 2011 Drs. are
net of unamortized discounts of $39, $530, $172, $133, $224 and $214,
respectively.
(4) The 2011 Notes are redeemable at the option of the holder thereof, on May
15, 2004.
(5) The 2027 Notes are redeemable at the option of the holders thereof, on May
15, 2002.
(6) The 2011 Drs. are required to be redeemed by the Operating Partnership on
April 5, 2001 if the Remarketing Dealer elects not to remarket the 2011
Drs.
(7) The 2011 Drs. bear interest at an annual rate of 6.50% to the Remarketing
Date. If the holder of the Call Option calls the 2011 Drs. and elects to
remarket the 2011 Drs., then after the Remarketing Date, the interest rate
on the 2011 Drs. will be reset at a fixed rate until April 5, 2011 based on
a predetermined formula as disclosed in the related Prospectus Supplement.
(8) The 1997 Unsecured Acquisition Facility was amended and restated in June
2000.
8
10
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND PER SHARE DATA)
4. MORTGAGE LOANS, NET, SENIOR UNSECURED DEBT, NET AND ACQUISITION FACILITY
PAYABLE, CONTINUED
The following is a schedule of the stated maturities and scheduled
principal payments of the mortgage loans, senior unsecured debt and acquisition
facility payable for each of the next five years ending December 31, and
thereafter:
Amount
---------------
Remainder of 2000 $ 1,176
2001 2,507
2002 3,935
2003 200,135
2004 1,998
Thereafter 1,004,786
---------------
Total $ 1,214,537
===============
The maturity date of the LB Mortgage Loan II is based on a contingent
event. As a result, this loan is not included in the preceding table.
5. STOCKHOLDERS' EQUITY
Restricted Stock:
During the six months ended June 30, 2000, the Company awarded 355,139
shares of restricted common stock to certain employees and 1,833 shares of
restricted common stock to certain Directors. Other employees of the Company
converted certain in-the-money employee stock options to 14,903 shares of
restricted common stock. These shares of restricted common stock had a fair
value of approximately $9,634 on the date of grant. The restricted common stock
vests over periods from one to ten years. Compensation expense will be charged
to earnings over the respective vesting periods.
Treasury Stock:
In March 2000, the Company's Board of Directors approved the repurchase of
up to $100,000 of the Company's common stock. The Company may make purchases
from time to time, if price levels warrant, in the open market or in privately
negotiated transactions. During the second quarter of 2000, the Company
repurchased 17,500 shares of its common stock at a weighted average price per
share of approximately $27.24.
9
11
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND PER SHARE DATA)
5. STOCKHOLDERS' EQUITY, continued
Dividends/Distributions:
The following table summarizes dividends/distributions for the six months
ended June 30, 2000:
COMMON STOCK/OPERATING PARTNERSHIP UNITS
Dividend/Distribution Total
Record Date Payable Date per Share/Unit Dividend/Distribution
----------------- ------------------ ----------------------- ---------------------
Fourth Quarter 1999 December 31, 1999 January 24, 2000 $ .6200 $ 28,164
First Quarter 2000 March 31, 2000 April 17, 2000 $ .6200 $ 28,462
Second Quarter 2000 June 30, 2000 July 17, 2000 $ .6200 $ 28,601
PREFERRED STOCK
First Quarter: Dividend Total
Record Date Payable Date per Share Dividend
----------------- ------------------ ----------------------- ---------------------
Series A Preferred Stock March 15, 2000 March 31, 2000 $ .59375 $ 980
Series B Preferred Stock March 15, 2000 March 31, 2000 $ 54.68750 $ 2,188
Series C Preferred Stock March 15, 2000 March 31, 2000 $ 53.90600 $ 1,078
Series D Preferred Stock March 15, 2000 March 31, 2000 $ 49.68700 $ 2,485
Series E Preferred Stock March 15, 2000 March 31, 2000 $ 49.37500 $ 1,480
Second Quarter: Dividend Total
Record Date Payable Date per Share Dividend
--------------- ----------------- ----------------------- ---------------------
Series A Preferred Stock June 15, 2000 June 30, 2000 $ .59375 $ 980
Series B Preferred Stock June 15, 2000 June 30, 2000 $ 54.68750 $ 2,188
Series C Preferred Stock June 15, 2000 June 30, 2000 $ 53.90600 $ 1,078
Series D Preferred Stock June 15, 2000 June 30, 2000 $ 49.68700 $ 2,485
Series E Preferred Stock June 15, 2000 June 30, 2000 $ 49.37500 $ 1,480
6. ACQUISITION AND DEVELOPMENT OF REAL ESTATE
During the six months ended June 30, 2000, the Company acquired 29
industrial properties and several land parcels. The aggregate purchase price for
these acquisitions totaled approximately $100,200, excluding costs incurred in
conjunction with the acquisition of the properties. The Company also completed
the development of 13 industrial properties comprising approximately 2.2 million
square feet of GLA at a cost of approximately $76,323.
7. SALES OF REAL ESTATE
During the six months ended June 30, 2000, the Company sold 35 industrial
properties and several land parcels. Gross proceeds from these sales were
approximately $136,193. The gain on sales of real estate was approximately
$15,931.
10
12
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND PER SHARE DATA)
8. REAL ESTATE HELD FOR SALE
The Company has an active sales program through which it is continually
engaged in identifying and evaluating its current portfolio for potential sales
candidates. At June 30, 2000, the Company had 124 properties comprising
approximately 11.0 million square feet of GLA held for sale (of which, 110
properties comprising approximately 10.1 million square feet of GLA are in the
Company's exit markets). All of these properties were identified as held for
sale during the three months ended June 30, 2000. There can be no assurance that
such properties held for sale will be sold.
The following table discloses certain information regarding the 124
properties held for sale by the Company.
SIX MONTHS ENDED
JUNE 30,
------------------------------
2000 1999
------------- -------------
Total Revenues $ 31,706 $ 30,633
Operating Expenses (9,754) (9,756)
Depreciation and Amortization (5,744) (5,226)
------------- -------------
Income from Operations $ 16,208 15,651
============= =============
9. SUPPLEMENTAL INFORMATION TO STATEMENTS OF CASH FLOWS
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Six Months Ended
--------------------------------------
June 30, June 30,
2000 1999
----------------- ----------------
Interest paid, net of capitalized interest .................. $ 40,716 $ 40,165
================= ================
Interest capitalized......................................... $ 2,747 $ 2,464
================= ================
Supplemental schedule of noncash investing and financing activities:
Distribution payable on common stock/units................... $ 28,601 $ 27,157
================= ================
Issuance of units in exchange for property...................... $ 869 $ ---
================ =================
Exchange of units for common shares:
Minority interest........................................... $ (2,488) $ (638)
Common stock................................................ 1 ---
Additional paid-in capital.................................. 2,487 638
---------------- -----------------
$ --- $ ---
================ =================
In conjunction with the property and land acquisitions, the
following assets and liabilities were assumed:
Purchase of real estate ..................................... $ 100,200 $ 30,638
Accrued real estate taxes and security deposits ............. (1,014) (44)
----------------- ----------------
$ 99,186 $ 30,594
================= ================
In conjunction with certain property sales, the Company provided
seller financing on behalf of certain buyers:
Notes receivable............................................. $ 5,149 $ 700
================= =================
11
13
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND PER SHARE DATA)
10. EARNINGS PER SHARE
Earnings per share ("EPS") amounts are based on the weighted average amount
of common stock and common stock equivalents (employee stock options)
outstanding. The outstanding units in the Operating Partnership (the "Units")
have been excluded from the diluted earnings per share calculation as there
would be no effect on the earnings per share amounts since the minority
interests' share of income would also be added back to net income. The
computation of basic and diluted EPS is presented below:
Six Months Ended Three Months Ended
--------------------------------- ---------------------------------
June 30, 2000 June 30, 1999 June 30, 2000 June 30, 1999
--------------- -------------- -------------- --------------
Numerator:
Net Income................................... $ 58,963 $ 55,902 $ 30,624 $ 30,267
Less: Preferred Stock Dividends.............. (16,422) (16,422) (8,211) (8,211)
--------------- -------------- -------------- --------------
Net Income Available to Common Stockholders
-For Basic and Diluted EPS................. $ 42,541 $ 39,480 $ 22,413 $ 22,056
=============== ============== ============== ==============
Denominator:
Weighted Average Shares - Basic.............. 38,559 38,000 38,737 38,037
Effect of Dilutive Securities:
Employee and Director Common Stock Opinions. 195 118 232 151
--------------- -------------- -------------- --------------
Weighted Average Shares- Diluted............. 38,754 38,118 38,969 38,188
=============== ============== ============== ==============
Basic EPS:
Net Income Available to Common Stockholders.. $ 1.10 $ 1.04 $ .58 $ .58
=============== ============== ============== ==============
Diluted EPS:
Net Income Available to Common Stockholders.. $ 1.10 $ 1.04 $ .58 $ .58
=============== ============== ============== ==============
12
14
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND PER SHARE DATA)
11. COMMITMENTS AND CONTINGENCIES
In the normal course of business, the Company is involved in legal actions
arising from the operation of its business. In management's opinion, the
liabilities, if any, that may ultimately result from such legal actions are not
expected to have a materially adverse effect on the consolidated financial
position, operations or liquidity of the Company.
The Company has committed to the construction of 20 development projects
totaling approximately 2.3 million square feet of GLA for an estimated
investment of approximately $120.7 million. Of this amount, approximately $56.5
million remains to be funded. These developments are expected to be funded with
cash flow from operations, borrowings under the 2000 Unsecured Acquisition
Facility and proceeds from the sale of select properties of the Company.
12. SUBSEQUENT EVENTS
From July 1, 2000 to August 10, 2000, the Company acquired several land
parcels for an aggregate purchase price of approximately $5,278, excluding costs
incurred in conjunction with the acquisition of these land parcels. The Company
also sold 11 industrial properties for approximately $40,693 of gross proceeds.
On July 17, 2000, the Company and the Operating Partnership paid a second
quarter 2000 dividend/distribution of $.62 per common share/Unit, totaling
approximately $28,601.
13
15
FIRST INDUSTRIAL REALTY TRUST, INC.
ITEM 2. MANAGEMENT's DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The following discussion and analysis of First Industrial Realty Trust,
Inc.'s (the "Company") financial condition and results of operations should be
read in conjunction with the financial statements and notes thereto appearing
elsewhere in this Form 10-Q.
This report contains certain forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. The Company intends such
forward-looking statements to be covered by the safe harbor provisions for
forward-looking statements contained in the Private Securities Litigation Reform
Act of 1995, and is including this statement for purposes of complying with
those safe harbor provisions. Forward-looking statements, which are based on
certain assumptions and describe future plans, strategies and expectations of
the Company, are generally identifiable by use of the words "believe", "expect",
"intend", "anticipate", "estimate", "project" or similar expressions. The
Company's ability to predict results or the actual effect of future plans or
strategies is inherently uncertain. Factors which could have a material adverse
affect on the operations and future prospects of the Company on a consolidated
basis include, but are not limited to, changes in: economic conditions generally
and the real estate market specifically, legislative/regulatory changes
(including changes to laws governing the taxation of real estate investment
trusts), availability of capital, interest rates, competition, supply and demand
for industrial properties in the Company's current and proposed market areas and
general accounting principles, policies and guidelines applicable to real estate
investment trusts. These risks and uncertainties should be considered in
evaluating forward-looking statements and undue reliance should not be placed on
such statements. Further information concerning the Company and its business,
including additional factors that could materially affect the Company's
financial results, is included herein and in the Company's other filings with
the Securities and Exchange Commission.
The Company was organized in the state of Maryland on August 10, 1993. The
Company is a real estate investment trust ("REIT") as defined in the Internal
Revenue Code. The Company's operations are conducted primarily through First
Industrial, L.P. (the "Operating Partnership") of which the Company is the sole
general partner with an approximate 84.3% ownership interest at June 30, 2000.
As of June 30, 2000, the Company owned 975 in-service properties located in 24
states, containing an aggregate of approximately 68.3 million square feet of
gross leasable area ("GLA") and two properties held for redevelopment. Of the
975 in-service properties owned by the Company, 819 are held by the Operating
Partnership, 99 are held by limited partnerships in which the Operating
Partnership is the limited partner and wholly-owned subsidiaries of the REIT are
the general partners, 52 are held by limited liability companies of which the
Operating Partnership is the sole member and five are held by an entity in which
the Operating Partnership owns a 95% economic interest. The Company, through
wholly-owned limited liability companies of which the Operating Partnership is
the sole member, also owns 10% equity interests in, and provides asset and
property management services to, two joint ventures which invest in industrial
properties (the "September 1998 Joint Venture" and the "September 1999 Joint
Venture"). Minority interest in the Company at June 30, 2000 represents the
approximate 15.7% aggregate partnership interest in the Operating Partnership
held by the limited partners thereof.
RESULTS OF OPERATIONS
At June 30, 2000, the Company owned 975 in-service properties with
approximately 68.3 million square feet of GLA, compared to 968 in-service
properties with approximately 67.5 million square feet of GLA at June 30, 1999.
During the period between July 1, 1999 and June 30, 2000, the Company acquired
46 properties containing approximately 3.8 million square feet of GLA, completed
development of 27 properties and expansion of one property totaling
approximately 4.7 million square feet of GLA and sold 65 in-service properties
totaling approximately 7.3 million square feet of GLA and several land parcels.
14
16
The Company also took one property out of service which was subsequently sold
comprising approximately .4 million square feet of GLA.
The comparison of the six months ended June 30, 2000 to the six months
ended June 30, 1999 and the comparison of the three months ended June 30, 2000
to the three months ended June 30, 1999 is shown net of property acquisitions,
developments placed in service and property dispositions.
COMPARISON OF SIX MONTHS ENDED JUNE 30, 2000 TO SIX MONTHS ENDED JUNE 30, 1999
Rental income and tenant recoveries and other income remained relatively
unchanged. Rental income and tenant recoveries and other income from properties
owned prior to January 1, 1999 increased by approximately $5.7 million or 3.6%
due primarily to general rent increases and an increase in recoverable income
due to an increase in property expenses as discussed below.
Property expenses, which include real estate taxes, repairs and
maintenance, property management, utilities, insurance and other expenses
increased by approximately $1.4 million or 2.6% due primarily to increases in
property management expense and other expenses, offset by a decrease in repairs
and maintenance expense. The increase in property management expense is
primarily due to costs associated with the opening of a regional office in
California during the third quarter of 1999 as well as general pay increases.
Other expenses increased due primarily to an increase in master lease payments
associated with 15 properties during the six months ended June 30, 2000 as
compared to the six months ended June 30, 1999. The decrease in repairs and
maintenance expense is due to a decrease in snow removal and related expenses
incurred during the six months ended June 30, 2000 as compared to the six months
ended June 30, 1999. Property expenses from properties owned prior to January 1,
1999 increased $1.1 million or 2.5% due primarily to an increase in real estate
taxes and property management expense offset by a decrease in repairs and
maintenance.
General and administrative expense increased by approximately $1.7 million
due primarily to general pay increases and additional employees.
Interest expense decreased by approximately $.2 million for the six months
ended June 30, 2000 compared to the six months ended June 30, 1999 due primarily
to a lower average debt balance outstanding and an increase in capitalized
interest for the six months ended June 30, 2000. The increase in capitalized
interest was due to an increase in development activities. This was slightly
offset by an increase in the weighted average interest rate for the six months
ended June 30, 2000 (7.29%) compared to the six months ended June 30, 1999
(7.14%). The average debt balance outstanding for the six months ended June 30,
2000 and 1999 was approximately $1.18 billion and $1.21 billion, respectively.
Amortization of deferred financing costs increased by approximately $.3
million due primarily to amortization of additional deferred financing costs
relating to the Company's $300.0 million unsecured line of credit (the "1997
Unsecured Acquisition Facility").
Depreciation and other amortization increased by approximately $.8 million
due primarily to depreciation and amortization related to tenant improvements
incurred subsequent to December 31, 1998.
Equity in income of joint ventures remained relatively unchanged.
The $15.9 million gain on sales of properties for the six months ended June
30, 2000 resulted from the sale of 35 industrial properties and several land
parcels. Gross proceeds from these sales were approximately $136.2 million.
The $8.3 million gain on sales of properties for the six months ended June
30, 1999 resulted from the sale of 24 existing industrial properties, one
property under development and one land parcel. Gross proceeds from these sales
were approximately $84.0 million.
COMPARISON OF THREE MONTHS ENDED JUNE 30, 2000 TO THREE MONTHS ENDED JUNE 30,
1999
Rental income and tenant recoveries and other income remained relatively
unchanged. Rental income and tenant recoveries and other income from properties
owned prior to April 1, 1999 increased by approximately $2.9 million or 3.6% due
primarily to general rent increases and an increase in recoverable income due to
an increase in property expenses as discussed below.
15
17
Property expenses, which include real estate taxes, repairs and
maintenance, property management, utilities, insurance and other expenses
increased by approximately $1.5 million or 5.9% due primarily to an increase in
property management expense and other expenses. The increase in property
management expense is primarily due to costs associated with the opening of a
regional office in California during the third quarter of 1999 as well as
general pay increases. Other expenses increased due primarily to an increase in
master lease payments associated with 12 properties during the three months
ended June 30, 2000 as compared to the three months ended June 30, 1999.
Property expenses from properties owned prior to April 1, 1999 increased
approximately $.4 million or 1.9% due primarily to an increase in repairs
and maintenance, property management expense and utilities expense.
General and administrative expense increased by approximately $1.2 million
due primarily to general pay increases and additional employees.
Interest expense remained relatively unchanged.
Amortization of deferred financing costs increased by approximately $.1
million due primarily to amortization of additional deferred financing costs
relating to the 1997 Unsecured Acquisition Facility.
Depreciation and other amortization increased by approximately $.2 million
due primarily to depreciation and amortization related to tenant improvements
incurred subsequent to March 31, 1999.
Equity in income of joint ventures remained relatively unchanged.
The $10.1 million gain on sales of properties for the three months ended
June 30, 2000 resulted from the sale of 24 industrial properties and several
land parcels. Gross proceeds from these sales were approximately $81.1 million.
The $6.8 million gain on sales of properties for the three months ended
June 30, 1999 resulted from the sale of 14 existing industrial properties and
one property under development. Gross proceeds from these sales were
approximately $60.1 million.
LIQUIDITY AND CAPITAL RESOURCES
At June 30, 2000, the Company's cash and cash equivalents was approximately
$5.5 million and restricted cash was approximately $28.3 million. Included in
restricted cash are approximately $1.4 million of cash reserves required to be
set aside under the Company's $40.0 million mortgage loan (the "1995 Mortgage
Loan") for payments of security deposit refunds, tenant improvements, capital
expenditures, interest, real estate taxes, and insurance. The portion of the
cash reserve relating to payments for capital expenditures, interest, real
estate taxes, and insurance for properties collateralizing the 1995 Mortgage
Loan is established monthly, distributed to the Company as such expenditures are
made and is replenished to a level adequate to make the next periodic payment of
such expenditures. The portion of the cash reserve relating to security deposit
refunds for the tenants occupying the properties collateralizing the 1995
Mortgage Loan is adjusted as tenants turn over. Also included in restricted cash
is approximately $26.9 million of gross proceeds from the sales of certain
properties. These sales proceeds will be disbursed as the Company exchanges into
properties under Section 1031 of the Internal Revenue Code.
SIX MONTHS ENDED JUNE 30, 2000
Net cash provided by operating activities of approximately $68.9 million
for the six months ended June 30, 2000 was comprised primarily of net income
before minority interest of approximately $67.1 million and adjustments for
non-cash items of approximately $20.8 million, offset by the net change in
operating assets and liabilities of approximately $19.0 million. The adjustments
for the non-cash items of approximately $20.8 million are primarily comprised of
depreciation and amortization of approximately $37.4 million and a provision for
bad debts of approximately $.1 million, offset by the gain on sales of
16
18
properties of approximately $15.9 million and the effect of the straight-lining
of rental income of approximately $.8 million.
Net cash used in investing activities of approximately $62.3 million for
the six months ended June 30, 2000 was comprised primarily of the acquisition of
real estate, development of real estate, capital expenditures related to the
expansion and improvement of existing real estate and an increase in restricted
cash from sales proceeds deposited with an intermediary for Section 1031
exchange purposes, offset by the net proceeds from the sales of real estate,
distributions from the September 1998 Joint Venture and the repayment of
mortgage loans receivable.
Net cash used in financing activities of approximately $3.7 million for the
six months ended June 30, 2000 was comprised primarily of repayments on mortgage
loans payable, the purchase of treasury shares, the purchase of U.S. Government
securities used as substitute collateral to execute a legal defeasance of a
portion of the 1995 Mortgage Loan (the "1995 Defeased Mortgage Loan"), common
and preferred stock dividends and unit distributions and debt issuance costs
incurred in conjunction with the 2000 Unsecured Acquisition Facility (defined
below), offset by the net borrowings under the Company's 1997 Unsecured
Acquisition Facility and 2000 Unsecured Acquisition Facility (defined below) and
net proceeds from the exercise of employee stock options.
SIX MONTHS ENDED JUNE 30, 1999
Net cash provided by operating activities of approximately $74.1 million
for the six months ended June 30, 1999 was comprised primarily of net income
before minority interest of approximately $63.6 million and adjustments for
non-cash items of approximately $24.3 million, offset by the net change in
operating assets and liabilities of approximately $13.8 million. The adjustments
for the non-cash items of approximately $24.3 million are primarily comprised of
depreciation and amortization of approximately $35.1 million, offset by the gain
on sales of real estate of approximately $8.3 million and the effect of the
straight-lining of rental income of approximately $2.5 million.
Net cash used in investing activities of approximately $40.3 million for
the six months ended June 30, 1999 was comprised primarily of the acquisition of
real estate, development of real estate, capital expenditures related to the
expansion and improvement of existing real estate, investment in the September
1998 Joint Venture and an increase in restricted cash from sales proceeds
deposited with an intermediary for Section 1031 exchange purposes, offset by the
net proceeds from the sales of real estate, distributions from the September
1998 Joint Venture and the repayment of mortgage loans receivable.
Net cash used in financing activities of approximately $49.0 million for
the six months ended June 30, 1999 was comprised primarily of repayments on
mortgage loans payable and common and preferred stock dividends and
distributions, offset by the net borrowings under the Company's 1997 Unsecured
Acquisition Facility.
17
19
MARKET RISK
The following discussion about the Company's risk-management activities
includes "forward-looking statements" that involve risk and uncertainties.
Actual results could differ materially from those projected in the
forward-looking statements.
This analysis presents the hypothetical gain or loss in earnings, cash
flows or fair value of the financial instruments and derivative instruments
which are held by the Company at June 30, 2000 that are sensitive to changes in
the interest rates. While this analysis may have some use as a benchmark, it
should not be viewed as a forecast.
In the normal course of business, the Company also faces risks that are
either non-financial or non-quantifiable. Such risks principally include credit
risk and legal risk and are not represented in the following analysis.
At June 30, 2000, $161.8 million (approximately 13.3% of total debt at June
30, 2000) of the Company's debt was variable rate debt (all of the variable rate
debt relates to the Company's 2000 Unsecured Acquisition Facility (defined
below)) and $1,052.5 million (approximately 86.7% of total debt at June 30,
2000) was fixed rate debt. The Company also had outstanding a written put and a
written call option (collectively, the "Written Options") which were issued in
conjunction with the initial offering of two tranches of unsecured debt. The
Company's past practice has been to lock into fixed interest rates at issuance
or fix the rate of variable rate debt through the use of interest rate
protection agreements when interest rate market conditions dictate it is
advantageous to do so. Currently, the Company does not enter into financial
instruments for trading or other speculative purposes.
18
20
For fixed rate debt, changes in interest rates generally affect the fair
value of the debt, but not earnings or cash flows of the Company. Conversely,
for variable rate debt, changes in the interest rate generally do not impact the
fair value of the debt, but would affect the Company's future earnings and cash
flows. The interest rate risk and changes in fair market value of fixed rate
debt generally do not have a significant impact on the Company until the Company
is required to refinance such debt. See Note 4 to the consolidated financial
statements for a discussion of the maturity dates of the Company's various fixed
rate debt.
Based upon the amount of variable rate debt outstanding at June 30, 2000, a
10% increase or decrease in the interest rate on the Company's variable rate
debt would decrease or increase, respectively, future net income and cash flows
by approximately $1.2 million per year. A 10% increase in interest rates would
decrease the fair value of the fixed rate debt at June 30, 2000 by approximately
$48.6 million to $941.8 million. A 10% decrease in interest rates would increase
the fair value of the fixed rate debt at June 30, 2000 by approximately $54.0
million to $1,044.4 million. A 10% increase in interest rates would decrease the
fair value of the Written Options at June 30, 2000 by approximately $2.1 million
to $3.1 million. A 10% decrease in interest rates would increase the fair value
of the Written Options at June 30, 2000 by approximately $3.5 million to $8.7
million.
INVESTMENT IN REAL ESTATE, DEVELOPMENT OF REAL ESTATE AND SALES OF REAL ESTATE
During the six months ended June 30, 2000, the Company purchased 29
industrial properties and several land parcels, for an aggregate purchase price
of approximately $100.2 million, excluding costs incurred in conjunction with
the acquisition of the properties. The Company also completed the development of
13 industrial properties comprising approximately 2.2 million square feet of GLA
at a cost of approximately $76.3 million.
During the six months ended June 30, 2000, the Company sold 35 industrial
properties and several land parcels. Gross proceeds from these sales were
approximately $136.2 million.
The Company has committed to the construction of 20 development projects
totaling approximately 2.3 million square feet of GLA for an estimated
investment of approximately $120.7 million. Of this amount, approximately $56.5
million remains to be funded. These developments are expected to be funded with
cash flows from operations, borrowings under the Company's 2000 Unsecured
Acquisition Facility and proceeds from the sale of select properties of the
Company.
REAL ESTATE HELD FOR SALE
The Company has an active sales program through which it is continually
engaged in identifying and evaluating its current portfolio for potential sales
candidates. At June 30, 2000, the Company had 124 properties comprising
approximately 11.0 million square feet of GLA held for sale (of which, 110
properties comprising approximately 10.1 million square feet of GLA are in the
Company's exit markets). Income from operations of the 124 properties held for
sale for the six months ended June 30, 2000 and 1999 is approximately $16.2
million and $15.7 million, respectively. Net carrying value of the 124
properties held for sale at June 30, 2000 is approximately $390.2 million. All
of these properties were identified as held for sale during the three months
ended June 30, 2000. There can be no assurance that such properties held for
sale will be sold.
INVESTMENTS IN JOINT VENTURES
During the six months ended June 30, 2000, the Company, through
wholly-owned limited liability companies in which the Operating Partnership is
the sole member, received, in the aggregate, approximately $1.4 million in asset
management and property management fees from the September 1998 Joint Venture
and the September 1999 Joint Venture. The Company, through a wholly-owned
limited liability company in which the Operating Partnership is the sole member,
received distributions of approximately $.5 million from the September 1998
Joint Venture. As of June 30, 2000, the September 1998
19
21
Joint Venture owned 146 industrial properties comprising approximately 7.5
million square feet of GLA and the September 1999 Joint Venture owned 39
industrial properties comprising approximately 1.2 million square feet of GLA.
MORTGAGE LOANS
On December 29, 1995, the Company, through an entity in which the Operating
Partnership is the sole limited partner and a wholly-owned subsidiary of the
Company is the general partner, entered into a $40.2 million mortgage loan (the
"1995 Mortgage Loan"). In June 2000, the Company purchased approximately $1.2
million of U.S. Government securities as substitute collateral to execute a
legal defeasance of approximately $1.2 million of the 1995 Mortgage Loan (the
"1995 Defeased Mortgage Loan"). The 1995 Defeased Mortgage Loan requires monthly
principal and interest payments based upon a 28-year amortization schedule. The
interest rate under the 1995 Defeased Mortgage Loan is fixed at 7.22% per annum.
The terms of the legal defeasance require the Company to use the gross proceeds
from the maturities of the U.S. Government securities to paydown and
subsequently retire the 1995 Defeased Mortgage Loan in January 2003. Upon the
execution of the legal defeasance, one of the 23 properties collateralizing the
1995 Mortgage Loan was released and subsequently sold .
ACQUISITION FACILITY PAYABLE
In June 2000, the Company amended and restated the 1997 Unsecured
Acquisition Facility and entered into a $300.0 million unsecured revolving
credit facility (the "2000 Unsecured Acquisition Facility") which initially
bears interest at LIBOR plus .80% or the Prime Rate at the Company's election,
and provides for interest only payments until maturity. Under the 2000 Unsecured
Acquisition Facility, the Company has the right, subject to certain conditions,
to increase the aggregate commitment under the 2000 Unsecured Acquisition
Facility up to $400.0 million. The Company may borrow under the 2000 Unsecured
Acquisition Facility to finance the acquisition and development of additional
properties and for other corporate purposes, including to obtain additional
working capital. The 2000 Unsecured Acquisition Facility contains certain
financial covenants relating to debt service coverage, market value net worth,
dividend payout ratio and total funded indebtedness. The 2000 Unsecured
Acquisition Facility matures on June 30, 2003.
ISSUANCE OF RESTRICTED STOCK
During the six months ended June 30, 2000, the Company awarded 355,139
shares of restricted common stock to certain employees and 1,833 shares of
restricted common stock to certain Directors. Other employees of the Company
converted certain in-the-money employee stock options to 14,903 shares of
restricted common stock. These shares of restricted common stock had a fair
value of approximately $9.6 million on the date of grant. The restricted common
stock vests over periods from one to ten years. Compensation expense will be
charged to earnings over the respective vesting periods.
TREASURY STOCK
In March 2000, the Company's Board of Directors approved the repurchase of
up to $100.0 million of the Company's common stock. The Company may make
purchases from time to time, if price levels warrant, in the open market or in
privately negotiated transactions. During the second quarter of 2000, the
Company repurchased 17,500 shares of its common stock at a weighted average
price per share of approximately $27.24.
DIVIDENDS/DISTRIBUTIONS
On January 24, 2000, the Company and the Operating Partnership paid a
fourth quarter 1999 distribution of $.62 per common share/Unit, totaling
approximately $28.2 million. On April 17, 2000, the Company and the Operating
Partnership paid a first quarter 2000 distribution of $.62 per common
share/Unit, totaling approximately $28.5 million.
20
22
On March 31, 2000, the Company paid first quarter preferred stock dividends
of $.59375 per share on its Series A Preferred Stock, $54.688 per share
(equivalent to $.54688 per Depositary Share) on its Series B Preferred Stock,
$53.906 per share (equivalent to $.53906 per Depositary Share) on its Series C
Preferred Stock, $49.687 per share (equivalent to $.49687 per Depositary Share)
on its Series D Preferred Stock and $49.375 per share (equivalent to $.49375 per
Depositary Share) on its Series E Preferred Stock. The preferred stock dividends
paid on March 31, 2000 totaled, in the aggregate, approximately $8.2 million.
On June 30, 2000, the Company paid second quarter preferred stock dividends
of $.59375 per share on its Series A Preferred Stock, $54.688 per share
(equivalent to $.54688 per Depositary Share) on its Series B Preferred Stock,
$53.906 per share (equivalent to $.53906 per Depositary Share) on its Series C
Preferred Stock, $49.687 per share (equivalent to $.49687 per Depositary Share)
on its Series D Preferred Stock and $49.375 per share (equivalent to $.49375 per
Depositary Share) on its Series E Preferred Stock. The preferred stock dividends
paid on June 30, 2000 totaled, in the aggregate, approximately $8.2 million.
SUBSEQUENT EVENTS
From July 1, 2000 to August 10, 2000, the Company acquired several land
parcels for an aggregate purchase price of approximately $5.3 million, excluding
costs incurred in conjunction with the acquisition of these land parcels. The
Company also sold 11 industrial properties for approximately $40.7 million of
gross proceeds.
On July 17, 2000, the Company and the Operating Partnership paid a second
quarter 2000 dividend/distribution of $.62 per common share/Unit, totaling
approximately $28.6 million.
SHORT-TERM AND LONG-TERM LIQUIDITY NEEDS
The Company has considered its short-term (one year or less) liquidity
needs and the adequacy of its estimated cash flow from operations and other
expected liquidity sources to meet these needs. The Company believes that its
principal short-term liquidity needs are to fund normal recurring expenses, debt
service requirements and the minimum distribution required to maintain the
Company's REIT qualification under the Internal Revenue Code. The Company
anticipates that these needs will be met with cash flows provided by operating
activities.
The Company expects to meet long-term (greater than one year) liquidity
requirements such as property acquisitions, developments, scheduled debt
maturities, major renovations, expansions and other nonrecurring capital
improvements through the disposition of select assets, long-term secured and
unsecured indebtedness and the issuance of additional equity securities. As of
June 30, 2000 and August 10, 2000, $589.2 million of common stock, preferred
stock and depositary shares and $100.0 million of debt securities were
registered and unissued under the Securities Act of 1933, as amended. The
Company also may finance the development or acquisition of additional properties
through borrowings under the 2000 Unsecured Acquisition Facility. At June 30,
2000, borrowings under the 2000 Unsecured Acquisition Facility bore interest at
a weighted average interest rate of 7.54%. As of August 10, 2000, the Company
had approximately $104.1 million available for additional borrowings under the
2000 Unsecured Acquisition Facility.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Response to this item is included in Item 2. "Management's Discussion
and Analysis of Financial Condition and Results of Operations" above.
21
23
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On May 17, 2000, First Industrial Realty Trust, Inc. ("the Company") held its
Annual Meeting of Stockholders. At the meeting, three Class III directors of
the Company were elected to serve until the 2003 Annual Meeting of
Stockholders and until their respective successors are duly elected and
qualified. The votes cast for each director were as follows:
For election of John Rau
Votes for: 33,653,780
Votes withheld: 155,628
For election of Robert J. Slater
Votes for: 33,651,009
Votes withheld: 158,399
For election of W. Ed Tyler
Votes for: 33,649,839
Votes withheld: 159,569
In addition, the appointment of PricewaterhouseCoopers LLP, as independent
auditors of the Company for the fiscal year ending December 31, 2000 was
ratified at the meeting with 33,431,622 shares voting in favor, 45,434 shares
voting against and 332,352 shares abstaining.
Jay H. Shidler, John L. Lesher and J. Steven Wilson continue to serve as
Class I directors until their present terms expire in 2001 and their
successors are duly elected. Michael W. Brennan, Michael G. Damone and Kevin
W. Lynch continue to serve as Class II directors until their present terms
expire in 2002 and their successors are duly elected.
ITEM 5. OTHER INFORMATION
Not Applicable
ITEM 6. EXHIBITS AND REPORT ON FORM 8-K
Exhibit No. Description
10.1* Amended and restated Unsecured Revolving Credit Agreement,
dated as of June 30, 2000 among First Industrial, L.P., First
Industrial Realty Trust, Inc. and Bank One, N.A., UBS AG, Stamford
Branch, Bank of America, N.A. and certain other banks
10.2 * Twelfth Amendment, dated as of June 27, 2000, to Sixth
Amended and Restated Limited Partnership Agreement of First
Industrial, L.P., dated March 18, 1998
10.3 * Employment Agreement , dated July 19, 2000, between First
Industrial Realty Trust, Inc. and Michael J. Havala
10.4 * Employment Agreement , dated July 26, 2000, between First
Industrial Realty Trust, Inc. and Johannson L. Yap
27 * Financial Data Schedule
* Filed herewith.
Report on Form 8-K
None
22
24
- --------------------------------------------------------------------------------
The Company has prepared supplemental financial and operating
information which is available without charge upon request to the Company.
Please direct requests as follows:
First Industrial Realty Trust, Inc.
311 S. Wacker, Suite 4000
Chicago, IL 60606
Attention: Investor Relations
23
25
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
FIRST INDUSTRIAL REALTY TRUST, INC.
Date: August 10, 2000 By: /s/ Michael J. Havala
--------------------------------------------
Michael J. Havala
Chief Financial Officer
(Principal Financial and Accounting Officer)
24
26
EXHIBIT INDEX
Exhibit No. Description
10.1* Amended and restated Unsecured Revolving Credit Agreement,
dated as of June 30, 2000 among First Industrial, L.P., First
Industrial Realty Trust, Inc. and Bank One, N.A., UBS AG, Stamford
Branch, Bank of America, N.A. and certain other banks
10.2 * Twelfth Amendment, dated as of June 27, 2000, to Sixth
Amended and Restated Limited Partnership Agreement of First
Industrial, L.P., dated March 18, 1998
10.3 * Employment Agreement , dated July 19, 2000, between First
Industrial Realty Trust, Inc. and Michael J. Havala
10.4 * Employment Agreement , dated July 26, 2000, between First
Industrial Realty Trust, Inc. and Johannson L. Yap
27 * Financial Data Schedule
* Filed herewith.
25
1
EXHIBIT 10.1
AMENDED AND RESTATED
UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF June 30, 2000
AMONG
FIRST INDUSTRIAL, L.P., AS BORROWER
FIRST INDUSTRIAL REALTY TRUST, INC., AS GENERAL PARTNER
AND
BANK ONE, NA,
UBS AG, STAMFORD BRANCH,
BANK OF AMERICA, N.A.,
AND CERTAIN OTHER BANKS,
AS LENDERS
AND
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
AND
UBS WARBURG LLC,
AS SYNDICATION AGENT
BANK OF AMERICA, N.A.,
AS DOCUMENTATION AGENT
AND
WACHOVIA BANK, N.A.,
AS MANAGING AGENT
2
AMENDED AND RESTATED UNSECURED REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED UNSECURED REVOLVING CREDIT AGREEMENT is
entered into as of June 30, 2000 by and among the following:
FIRST INDUSTRIAL, L.P., a Delaware limited partnership having its
principal place of business at 311 South Wacker Drive, Suite 4000, Chicago,
Illinois 60606 ("Borrower"), the sole general partner of which is First
Industrial Realty Trust, Inc., a Maryland corporation;
FIRST INDUSTRIAL REALTY TRUST, INC., a Maryland corporation that is
qualified as a real estate investment trust whose principal place of business is
311 South Wacker Drive, Suite 4000, Chicago, Illinois 60606 ("General Partner");
BANK ONE, NA ("Bank One"), a national bank organized under the laws of
the United States of America having an office at 1 Bank One Plaza, Chicago,
Illinois 60670;
UBS AG, STAMFORD BRANCH ("UBS"), the Stamford Branch of a Swiss banking
corporation, having an office at 677 Washington Boulevard, Stamford, Connecticut
06901;
BANK OF AMERICA, N.A., ("Bank of America") as Documentation Agent
("Documentation Agent");
Bank One, as Administrative Agent ("Administrative Agent") for the
Lenders (as defined below); and
Those Lenders identified on the signature pages hereto.
RECITALS
A. Borrower is primarily engaged in the business of acquiring,
developing, owning and operating bulk warehouse and light industrial properties.
B. Borrower, the General Partner, the Administrative Agent and certain
of the Lenders are parties to the "Existing Credit Agreement" (as defined
below).
C. The Borrower has requested that the Existing Credit Agreement be
replaced to change the maximum aggregate principal amount of $300,000,000 to
$300,000,000 or such higher amount up to $400,000,000 if additional commitments
are offered by any existing or new Lender and such commitments are accepted by
Borrower and Arranger (the "Facility"), to extend the maturity date of the
Facility and to amend certain other provisions of the Existing Credit Agreement
further as hereinafter set forth. The Administrative Agent and the Lenders have
agreed to do so.
D. General Partner is fully liable for the obligations of Borrower
hereunder by virtue of its status as the sole general partner of Borrower and as
guarantor under the Guaranty.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
3
Article I.
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions. As used in this Agreement, the following terms have
the meanings set forth below:
"Absolute Interest Period" means, with respect to a Competitive Bid
Loan made at an Absolute Rate, a period of up to 180 days as requested by
Borrower in a Competitive Bid Quote Request and confirmed by a Lender in a
Competitive Bid Quote but in no event extending beyond the Maturity Date. If an
Absolute Interest Period would end on a day which is not a Business Day, such
Absolute Interest Period shall end on the next succeeding Business Day.
"Absolute Rate" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid
Loan offered by a Lender and accepted by the Borrower at such rate under Section
2.16.
"Adjusted EBITDA" means for any Person the sum of EBITDA for such
Person and such Person's reported corporate overhead for itself and its
Subsidiaries; provided that "Adjusted EBITDA" shall not include overhead related
to specific properties.
"Adjusted LIBOR Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the sum of (i) the quotient of (a) the Base
LIBOR Rate applicable to such LIBOR Interest Period, divided by (b) one minus
the Reserve Requirement (expressed as a decimal) applicable to such LIBOR
Interest Period, plus, in the case of ratable LIBOR Advances, the LIBOR
Applicable Margin in effect from time to time during such LIBOR Interest Period,
or in the case of LIBOR Advances made as Competitive Bid Loans, the Competitive
LIBOR Margin established in the Competitive Bid Quote applicable to such
Competitive Bid Loan.
"Adjusted Prime Rate" means a floating interest rate equal to the Prime
Rate plus Prime Applicable Margin changing when and as the Prime Rate and Prime
Applicable Margin changes.
"Adjusted Prime Rate Advance" means an Advance that bears interest at
the Adjusted Prime Rate.
"Administrative Agent" means Bank One, acting as agent for the Lenders
in connection with the transactions contemplated by this Agreement, and its
successors in such capacity.
"Advance" means a Loan to the Borrower hereunder by one or more of the
Lenders pursuant to Section 2.1(a) hereof (including Swingline Loans and
Competitive Bid Loans), including the initial Advance and all subsequent
Advances, whether such Advances are from time to time, Adjusted Prime Rate
Advances, LIBOR Advances, Swingline Loans or Competitive Bid Loans.
"Affiliate" means any Person directly or indirectly controlling,
controlled by or under direct or indirect common control with any other Person.
A Person shall be deemed to control another Person if the controlling Person
owns ten percent (10%) or more of any class of voting securities of the
controlled Person or possesses, directly or indirectly, the power to direct or
-3-
4
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means, as of any date, the sum of all of the
Lenders' then-current Commitments, which initially shall be $300,000,000,
subject to Borrower's right to reduce the Aggregate Commitment pursuant to
Section 2.17 and to increase the Aggregate Commitment pursuant to Section 2.18.
"Agreement" means this Amended and Restated Unsecured Revolving Credit
Agreement and all amendments, modifications and supplements hereto.
"Agreement Execution Date" shall mean June 30, 2000, the date on which
all of the parties hereto have executed this Agreement.
"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances (including all Swingline Loans and Competitive Bid Loans),
and the then outstanding Facility Letter of Credit Obligations.
"Applicable Margin" means the applicable margins set forth in the table
in Section 2.6 used in calculating the interest rate applicable to the various
types of Advances, which shall vary from time to time in accordance with the
long term, senior unsecured debt ratings of Borrower and General Partner in the
manner set forth in Section 2.6.
"Arranger" means Banc One Capital Markets, Inc. and UBS Warburg LLC,
collectively.
"Bank One" means Bank One, NA.
"Base LIBOR Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the rate determined by the Administrative Agent
to be the rate at which deposits in immediately available funds in Dollars are
offered by the Administrative Agent to first-class banks in the London interbank
eurodollar market at approximately 11:00 a.m. London time two Business Days
prior to the first day of such LIBOR Interest Period, in the approximate amount
of the relevant LIBOR Advance and having a maturity approximately equal to such
LIBOR Interest Period.
"Borrower" means First Industrial, L.P., along with its permitted
successors and assigns.
"Borrowing Date" means a Business Day on which an Advance is made to
the Borrower.
"Borrowing Notice" is defined in Section 2.10(a) hereof.
"Business Day" means a day, other than a Saturday, Sunday or holiday,
on which banks are open for business in Chicago, Illinois and, where such term
is used in reference to the selection or determination of the Adjusted LIBOR
Rate, in London, England.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests
-4-
5
in a Person which is not a corporation and any and all warrants or options to
purchase any of the foregoing.
"Cash Equivalents" shall mean (i) short-term obligations of, or fully
guaranteed by, the United States of America, (ii) commercial paper rated A-1 or
better by Standard and Poor's Corporation or P-1 or better by Moody's Investors
Service, Inc., or (iii) certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and surplus in
excess of $100,000,000.
"Code" means the Internal Revenue Code of 1986 as amended from time to
time, or any replacement or successor statute, and the regulations promulgated
thereunder from time to time.
"Collateral Letter of Credit" means any irrevocable unconditional
Letter of Credit issued in the name of the Administrative Agent for the benefit
of the Lenders in form and substance satisfactory to the Administrative Agent
and drawn on a bank having a rating of at least AA by S&P and otherwise
satisfactory to the Administrative Agent.
"Commitment" means the obligation of each Lender, subject to the terms
and conditions of this Agreement and in reliance upon the representations and
warranties herein, to make Advances not exceeding in the aggregate the amount
set forth opposite its signature below, or the amount stated in any subsequent
amendment hereto.
"Competitive Bid Borrowing Notice" is defined in Section 2.16(f).
"Competitive Bid Lender" means a Lender which has a Competitive Bid
Loan outstanding.
"Competitive Bid Loan" is a Loan made pursuant to Section 2.16 hereof.
"Competitive Bid Note" means the promissory note payable to the order
of each Lender in the form attached hereto as Exhibit B-2 to be used to evidence
any Competitive Bid Loans which such Lender elects to make (collectively, the
"Competitive Bid Notes").
"Competitive Bid Quote" means a response submitted by a Lender to the
Administrative Agent with respect to a Competitive Bid Quote Request in the form
attached as Exhibit C-3.
"Competitive Bid Quote Request" means a written request from Borrower
to Administrative Agent in the form attached as Exhibit C-1.
"Competitive LIBOR Margin" means, with respect to any Competitive Bid
Loan for a LIBOR Interest Period, the percentage established in the applicable
Competitive Bid Quote which is to be used to determine the interest rate
applicable to such Competitive Bid Loan.
"Consolidated Operating Partnership" means the Borrower, the General
Partner and any other subsidiary partnerships or entities of either of them
which are required under GAAP to be consolidated with the Borrower and the
General Partner for financial reporting purposes.
"Consolidated Secured Debt" means as of any date of determination, the
sum of (a) the aggregate principal amount of all Indebtedness of the
Consolidated Operating Partnership
-5-
6
outstanding at such date which is secured by a Lien on any asset or Capital
Stock of Consolidated Operating Partnership, including without limitation loans
secured by mortgages, stock, or partnership interests, but excluding Defeased
REMIC Debt, and the Senior Preferred Stock so long as the PS Guaranty is
outstanding and (b) the amount by which the aggregate principal amount of all
Indebtedness of the Subsidiaries of the Borrower or General Partner outstanding
at such date exceeds $5,000,000, without duplication of any Indebtedness
included under clause (a).
"Consolidated Senior Unsecured Debt" means as of any date of
determination, the aggregate principal amount of all Indebtedness of the
Consolidated Operating Partnership outstanding at such date other than (a)
Indebtedness which is contractually subordinated to the Indebtedness of the
Consolidated Operating Partnership under the Loan Documents on terms acceptable
to the Administrative Agent and (b) that portion of Consolidated Secured Debt
described in clause (a) of that definition.
"Consolidated Total Indebtedness" means as of any date of
determination, all Indebtedness of the Consolidated Operating Partnership
outstanding at such date, determined on a consolidated basis in accordance with
GAAP, after eliminating intercompany items; provided that for purposes of
defining "Consolidated Total Indebtedness" the term "Indebtedness" shall not
include the short term debt (e.g. accounts payable, short term expenses) of
Borrower or General Partner or Defeased REMIC Debt.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with all or any of the entities in the
Consolidated Operating Partnership, are treated as a single employer under
Sections 414(b) or 414(c) of the Code.
"Debt Service" means for any period, (a) Interest Expense for such
period plus (b) the aggregate amount of regularly scheduled principal payments
of Indebtedness (excluding optional prepayments and balloon principal payments
due on maturity in respect of any Indebtedness) required to be made during such
period by the Borrower, or any of its consolidated Subsidiaries plus (c) a
percentage of all such regularly scheduled principal payments required to be
made during such period by any Investment Affiliate on Indebtedness (excluding
optional prepayments and balloon principal payments due on maturity in respect
of any Indebtedness) taken into account in calculating Interest Expense, equal
to the greater of (x) the percentage of the principal amount of such
Indebtedness for which the Borrower or any consolidated Subsidiary is liable and
(y) the percentage ownership interest in such Investment Affiliate held by the
Borrower and any consolidated Subsidiaries, in the aggregate, without
duplication plus (d) Senior Preferred Stock Expense of the General Partner for
such period.
"Default" means an event which, with notice or lapse of time or both,
would become an Event of Default.
"Default Rate" means with respect to any Advance, a rate equal to the
interest rate applicable to such Advance plus three percent (3%) per annum.
-6-
7
"Defaulting Lender" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; provided that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"Defeased REMIC Debt" means that portion of Second REMIC Loan which has
already been defeased, and such portion or portions of the Second REMIC Loan
which may in the future be defeased, by depositing collateral in the form of
obligations supported by the credit of the United States government in such
amounts as are required and permitted under the terms of the Second REMIC Loan.
"Designated Lender" means any Person who has been designated by a
Lender to fund Competitive Bid Loans pursuant to a Designation Agreement in the
form attached hereto as Exhibit K.
"Dollars" and "$" mean United States Dollars.
"EBITDA" means, with respect to any Person, income before extraordinary
items and after adjustment for any gains or losses from sales of assets (reduced
to eliminate any income from Investment Affiliates of such Person, any interest
income and, with respect to the Consolidated Operating Partnership, any income
from the assets used for Defeased REMIC Debt), as reported by such Person and
its Subsidiaries on a consolidated basis in accordance with GAAP, plus Interest
Expense, depreciation, amortization and income tax (if any) expense plus a
percentage of such income (adjusted as described above) of any such Investment
Affiliate equal to the allocable economic interest in such Investment Affiliate
held by such Person and any Subsidiaries, in the aggregate (provided that no
item of income or expense shall be included more than once in such calculation
even if it falls within more than one of the foregoing categories).
"Effective Date" means each Borrowing Date and, if no Borrowing Date
has occurred in the preceding calendar month, the first Business Day of each
calendar month.
"Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority having jurisdiction over the
Borrower, its Subsidiaries or Investment Affiliates, or their respective assets,
and regulating or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time
hereafter be in effect, in each case to the extent the foregoing are applicable
to the operations of the Borrower, any Investment Affiliate, or any Subsidiary
or any of their respective assets or Properties.
"Equity Value" is defined in Section 10.10 hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and regulations promulgated thereunder from time to time.
"Event of Default" means any event set forth in Article X hereof.
-7-
8
"Existing Credit Agreement" means that certain Unsecured Revolving
Credit Agreement dated as of December 15, 1997, as amended.
"Exit Markets" means (i) Cleveland, Ohio, (ii) Columbus, Ohio, (iii)
Dayton, Ohio, (iv) Des Moines, Iowa, (v) Grand Rapids, Michigan, (vi) Hartford,
Connecticut, (vii) Long Island, New York, and (viii) Louisiana.
"Extension Notice" is defined in Section 2.2 hereof.
"Facility" means the unsecured revolving credit facility described in
Section 2.1.
"Facility Fee" and "Facility Fee Rate" are defined in Section 2.7(b).
"Facility Letter of Credit" means a Financial Letter of Credit or
Performance Letter of Credit issued hereunder.
"Facility Letter of Credit Fee" is defined in Section 3.8.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrower with respect to Facility Letters of Credit, including the sum of (a)
the Reimbursement Obligations and (b) the aggregate undrawn face amount of the
then outstanding Facility Letters of Credit.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FIMC" means First Industrial Mortgage Corporation, a Delaware
corporation, and the sole general partner of the Mortgage Partnership. FIMC is a
wholly-owned subsidiary of the General Partner.
"Financial Letter of Credit" means any standby Letter of Credit which
represents an irrevocable obligation to the beneficiary on the part of the
Issuing Bank (i) to repay money borrowed by or advanced to or for the account of
the account party or (ii) to make any payment on account of any indebtedness
undertaken by the account party, in the event the account party fails to fulfill
its obligation to the beneficiary.
"Financing Partnership" means First Industrial Financing Partnership,
L.P., a Delaware limited partnership. Borrower and General Partner, either
directly or indirectly, collectively own 100% of the partnership interests of
the Financing Partnership.
-8-
9
"FISC" means First Industrial Securities Corporation, a Delaware
corporation, and the sole general partner of the Guaranteeing Partnership. FISC
is a wholly-owned subsidiary of the General Partner.
"Fitch" means Fitch, Inc.
"Funded Percentage" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount of the
Aggregate Commitment actually disbursed and outstanding to Borrower by such
Lender at such time, and the denominator of which is the total amount of the
Aggregate Commitment disbursed and outstanding to Borrower by all of the Lenders
at such time.
"Funds From Operations" for any period means GAAP net income, as
adjusted by (i) excluding gains and losses from property sales (unless they are
the result of Borrower's Integrated Industrial Solutions activities, which
primarily involve merchant development activities and land sales, as reported by
the Borrower), debt restructurings and property write-downs and adjusted for the
non-cash effect of straight-lining of rents, (ii) straight-lining various
ordinary operating expenses which are payable less frequently than monthly
(e.g., real estate taxes) and (iii) adding back depreciation, amortization and
all non-cash items. Annualized Funds From Operations for any Person will be
calculated by annualizing actual Funds From Operations for the most recently
ended fiscal quarter. In calculating Funds From Operations, no deduction shall
be made from net income for closing costs and other one-time charges associated
with the formation and capitalization of such Person.
"GAAP" means generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the audited
financial statements of the Borrower required hereunder.
"General Partner" means First Industrial Realty Trust, Inc., a Maryland
corporation that is listed on the New York Stock Exchange and is qualified as a
real estate investment trust. General Partner is the sole general partner of
Borrower.
"Gross Revenues" means total revenues, calculated in accordance with
GAAP.
"Guarantee Obligation" means as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counter indemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary
-9-
10
obligor to make payment of such primary obligation or (iv) otherwise to assure
or hold harmless the owner of any such primary obligation against loss in
respect thereof; provided, however, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the maximum stated amount of the primary obligation
relating to such Guarantee Obligation (or, if less, the maximum stated liability
set forth in the instrument embodying such Guarantee Obligation), provided, that
in the absence of any such stated amount or stated liability, the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Guaranteeing Partnership" means First Industrial Securities L.P., a
Delaware limited partnership. FISC is the sole general partner of the
Guaranteeing Partnership and Borrower is the sole limited partner.
"Guaranty" means the Guaranty executed by the General Partner in the
form attached hereto as Exhibit D.
"Implied Capitalization Value" means for any Person for any quarter,
the sum of (i) the quotient of (x) the Adjusted EBITDA for such Person during
such quarter (which Adjusted EBITDA shall be annualized as described in the
definition of "Funds From Operations", but shall exclude any Adjusted EBITDA
attributable to Preleased Assets Under Development), and (y) 9.5%, plus (ii) an
amount equal to fifty percent (50%) of the value of all Preleased Assets Under
Development, provided that in no event shall the aggregate amount added to
Implied Capitalization Value pursuant to this clause (ii) exceed the lesser of
(A) five percent (5%) of the Implied Capitalization Value or (B) $100,000,000,
plus (iii) an amount equal to 100% of unrestricted cash and unrestricted cash
equivalents, including any cash on deposit with a qualified intermediary with
respect to a deferred tax-free exchange (and specifically excluding any cash or
cash equivalents being used to support Defeased REMIC Debt), plus (iv) an amount
equal to 100% of the then-current book value, determined in accordance with
GAAP, of all first mortgage receivables on income producing commercial
properties, provided that in no event shall the aggregate amount added to
Implied Capitalization Value pursuant to this clause (iv) exceed ten percent
(10%) of Implied Capitalization Value. For purposes of computing the Implied
Capitalization Value, (A) Adjusted EBITDA may be increased from quarter to
quarter by the amount of net cash flow from new leases of space at the
Properties approved by Administrative Agent (where such net cash flow has not
then been included in EBITDA) which have a minimum term of one year and (B)
Properties which either (i) were acquired during the quarter and/or (ii) were
previously assets under development under GAAP but which have been completed
during the quarter and have at least some tenants in possession of the
respective leased spaces and conducting business operations therein each will be
included in the calculation of Implied Capitalization Value using Pro Forma
EBITDA for the quarter, so long as a "new acquisition/opening summary" form is
submitted to, and approved by, Administrative Agent for each new acquisition or
newly-opened Property during such quarter.
"Indebtedness" of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade liabilities and other accounts payable, and
-10-
11
accrued expenses incurred in the ordinary course of business and payable in
accordance with customary practices), to the extent such obligations constitute
indebtedness for the purposes of GAAP, (c) any other indebtedness of such Person
which is evidenced by a note, bond, debenture or similar instrument, (d) all
obligations of such Person under financing leases and capital leases, (e) all
obligations of such Person in respect of acceptances issued or created for the
account of such Person, (f) all Guarantee Obligations of such Person (excluding
in any calculation of consolidated indebtedness of the Consolidated Operating
Partnership, Guarantee Obligations of any member of the Consolidated Operating
Partnership in respect of primary obligations of any other member of the
Consolidated Operating Partnership), (g) all reimbursement obligations of such
Person for letters of credit and other contingent liabilities, (h) all
liabilities secured by any Lien (other than Liens for taxes not yet due and
payable) on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof, (i) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(j) Senior Preferred Stock, and (k) such Person's pro rata share of debt in
Investment Affiliates and any loans where such Person is liable as a general
partner. The liquidation preference of the Senior Preferred Stock will be
considered as Indebtedness and Consolidated Total Indebtedness, provided,
however, that the obligations of the General Partner created by the issuance of
Senior Preferred Stock and the obligations of the Guaranteeing Partnership
created by the execution and delivery of the PS Guaranty shall be deemed to
constitute a single, combined liability on a consolidated basis.
"Insolvency" means insolvency as defined in the United States
Bankruptcy Code, as amended. "Insolvent" when used with respect to a Person,
shall refer to a Person who satisfies the definition of Insolvency.
"Interest Expense" means all interest expense of the Consolidated
Operating Partnership determined in accordance with GAAP plus (i) capitalized
interest not covered by an interest reserve from a loan facility, plus (ii) the
allocable portion (based on liability) of any accrued or paid interest incurred
on any obligation for which the Consolidated Operating Partnership is wholly or
partially liable under repayment, interest carry, or performance guarantees, or
other relevant liabilities, plus (iii) the allocable percentage of any accrued
or paid interest incurred on any Indebtedness of any Investment Affiliate,
whether recourse or non-recourse, equal to the applicable economic interest in
such Investment Affiliate held by the Consolidated Operating Partnership, in the
aggregate, provided that no expense shall be included more than once in such
calculation even if it falls within more than one of the foregoing categories;
provided, however, that "Interest Expense" shall not include (i) dividends paid
on Senior Preferred Stock or payments made pursuant to the PS Guaranty or (ii)
interest on the Second REMIC Loan after it became Defeased REMIC Debt.
"Interest Period" means either an Absolute Interest Period or a LIBOR
Interest Period.
"Investment Affiliate" means any Person in which the Consolidated
Operating Partnership, directly or indirectly, has an ownership interest, whose
financial results are not consolidated under GAAP with the financial results of
the Consolidated Operating Partnership on the consolidated financial statements
of the Consolidated Operating Partnership.
-11-
12
"Invitation for Competitive Bid Quotes" means a written notice to the
Lenders from the Administrative Agent with respect to a Competitive Bid Quote
Request in the form attached as Exhibit C-2 hereto.
"Issuance Date" is defined in Section 3.4(a)(3).
"Issuance Notice" is defined in Section 3.4(c).
"Issuing Bank" means, with respect to each Facility Letter of Credit,
the Lender which issues such Facility Letter of Credit. Bank One shall be the
sole Issuing Bank.
"Lenders" means, collectively, Bank One, UBS, Bank of America and the
other Persons executing this Agreement in such capacity, or any Person which
subsequently executes and delivers any amendment hereto in such capacity and
each of their respective permitted successors and assigns. Where reference is
made to "the Lenders" in any Loan Document it shall be read to mean "all of the
Lenders".
"Lending Installation" means any U.S. office of any Lender authorized
to make loans similar to the Advances described herein.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 3.9.
"Letter of Credit Request" is defined in Section 3.4(a).
"LIBOR Advance" means an Advance that bears interest at the Adjusted
LIBOR Rate, whether a ratable Advance based on the LIBOR Applicable Margin or a
Competitive Bid Loan based on a Competitive LIBOR Margin.
"LIBOR Applicable Margin" means, as of any date with respect to any
LIBOR Advance, the Applicable Margin in effect for such LIBOR Advance as
determined in accordance with Section 2.6 hereof.
"LIBOR Interest Period" means, with respect to a LIBOR Advance, a
period of one, two, three or six months (to the extent that periods in excess of
three months are generally available from the Lenders), as selected in advance
by the Borrower.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof, any filing or
agreement to file a financing statement as debtor under the Uniform Commercial
Code on any property leased to any Person under a lease which is not in the
nature of a conditional sale or title retention agreement, or any subordination
agreement in favor of another Person).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
-12-
13
"Loan Documents" means this Agreement, the Notes, the Guaranty and any
and all other agreements or instruments required and/or provided to Lenders
hereunder or thereunder, as any of the foregoing may be amended from time to
time.
"Market Value Net Worth" means at any time, the Implied Capitalization
Value of a Person at such time minus the Indebtedness of such Person at such
time.
"Material Adverse Effect" means, with respect to any matter, that such
matter in the Required Lenders' good faith judgment may (x) materially and
adversely affect the business, properties, condition or results of operations of
the Consolidated Operating Partnership taken as a whole, or (y) constitute a
non-frivolous challenge to the validity or enforceability of any material
provision of any Loan Document against any obligor party thereto.
"Material Adverse Financial Change" shall be deemed to have occurred if
the Required Lenders, in their good faith judgment, determine that a material
adverse financial change has occurred which could prevent timely repayment of
any Advance hereunder or materially impair Borrower's ability to perform its
obligations under any of the Loan Documents.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
radon, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means June 30, 2003, subject to extension pursuant to
the terms and conditions of Section 2.2 hereof or such earlier date on which the
principal balance of the Facility and all other sums due in connection with the
Facility shall be due as a result of the acceleration of the Facility.
"Monetary Default" means any Default involving Borrower's failure to
pay any of the Obligations when due.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Mortgage Partnership" means First Industrial Mortgage L.P., a Delaware
limited partnership. FIMC is the sole general partner of the Mortgage
Partnership and Borrower is the sole limited partner.
"Note" means the promissory note payable to the order of each Lender in
the amount of such Lender's maximum Commitment in the form attached hereto as
Exhibit B-1 (collectively, the "Notes").
"Obligations" means the Advances, the Facility Letter of Credit
Obligations and all accrued and unpaid fees and all other obligations of
Borrower to the Administrative Agent or any or all of the Lenders arising under
this Agreement or any of the other Loan Documents.
"Payment Date" means the last Business Day of each calendar quarter.
"Participants" is defined in Section 13.2.1 hereof.
-13-
14
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to each Lender, the applicable
percentage of the then-current Aggregate Commitment represented by such Lender's
then-current Commitment.
"Performance Letter of Credit" means any standby Letter of Credit which
represents an irrevocable obligation to the beneficiary on the part of the
Issuing Bank to make payment on account of any default by the account party in
the performance of a nonfinancial or commercial obligation.
"Permitted Liens" are defined in Section 9.6 hereof.
"Person" means an individual, a corporation, a limited or general
partnership, an association, a joint venture or any other entity or
organization, including a governmental or political subdivision or an agent or
instrumentality thereof.
"Plan" means an employee benefit plan as defined in Section 3(3) of
ERISA, whether or not terminated, as to which the Borrower or any member of the
Controlled Group may have any liability.
"Preleased Assets Under Development" means, as of any date of
determination, any Project which (i) is under construction and then treated as
an asset under development under GAAP, and (ii) has, as of such date, at least
fifty percent (50%) of its projected total rentable area leased at market rates
to third party tenants similar to those at Borrower's other properties, both
such land and improvements under construction to be valued for purposes of this
Agreement at then-current book value, as determined in accordance with GAAP;
provided, however, in no event shall Preleased Assets Under Development include
any Project for more than 270 days from the date such Project is initially so
designated under GAAP.
"Prime Applicable Margin" means the Applicable Margin in effect for an
Adjusted Prime Rate Advance as determined in accordance with Section 2.6 hereof.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced by Bank One from time to time, changing when and as such prime rate
changes.
"Project" means any real estate asset which is 100% owned by the
Borrower or by any Wholly-Owned Subsidiary and which is operated as an
industrial property.
"Property" means each parcel of real property owned or operated by the
Borrower, any Subsidiary or Investment Affiliate.
"Property Operating Income" means, with respect to any Property, for
any period, earnings from rental operations (computed in accordance with GAAP
but without deduction for reserves) attributable to such Property plus
depreciation, amortization and interest expense with respect to such Property
for such period, and, if such period is less than a year, adjusted by straight
lining various ordinary operating expenses which are payable less frequently
than once during every such period (e.g. real estate taxes and insurance). The
earnings from rental operations reported
-14-
15
for the immediately preceding fiscal quarter shall be adjusted to include pro
forma earnings (as substantiated to the satisfaction of the Administrative
Agent) for an entire quarter for any Property acquired or placed in service
during such fiscal quarter and to exclude earnings during such quarter from any
property not owned as of the end of the quarter.
"PS Guaranty" means the existing guaranty of Senior Preferred Stock by
the Guaranteeing Partnership.
"Purchasers" is defined in Section 13.3.1 hereof.
"Purpose Credit" has the meaning ascribed to it in Regulation U of the
Board of Governors of the Federal Reserve System.
"Qualified Officer" means, with respect to any entity, the chief
financial officer, chief accounting officer or controller of such entity if it
is a corporation or of such entity's general partner if it is a partnership.
"Rate Option" means the Adjusted Prime Rate, the Adjusted LIBOR Rate or
the Absolute Rate (only as applicable to Competitive Bid Loans). The Rate Option
in effect on any date shall always be the Adjusted Prime Rate unless the
Borrower has properly selected the Adjusted LIBOR Rate pursuant to Section 2.10
hereof or a Competitive Bid Loan pursuant to Section 2.16 hereof.
"Rating Period" means any period during the term of the Facility during
which the Borrower's or General Partner's long-term, senior unsecured debt has
been rated by at least two of S&P, Moody's, and Fitch and the lower of the
highest two ratings is at least BBB- (S&P) or Baa3 (Moody's) or an equivalent
rating from Fitch.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
"REMIC Lender" means Nomura Asset Capital Corporation or any successor
thereto.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of ERISA shall be
a Reportable Event regardless of the issuance of any such waivers in accordance
with either Section 4043(a) of ERISA or Section 412(d) of the Code.
-15-
16
"Required Lenders" means Lenders in the aggregate having at least 66
2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66 2/3% of the aggregate
unpaid principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a LIBOR Interest Period,
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Second REMIC Loan" means the up to $42,600,000 mortgage loan made by
REMIC Lender to Mortgage Partnership pursuant to the terms of a Loan Agreement
dated as of December 29, 1995 (the "Second REMIC Loan Agreement") of which only
$40,200,000 was actually funded.
"Senior Preferred Stock" means for any Person, any preferred stock
issued by such Person which is not typical preferred stock but instead is both
(i) redeemable by the holders thereof on any fixed date or upon the occurrence
of any event and (ii) as to payment of dividends or amounts on liquidation,
either guaranteed by any direct or indirect subsidiary of such Person or secured
by any property of such Person or any direct or indirect subsidiary of such
Person.
"Senior Preferred Stock Expense" means for any period for any Person,
the aggregate dividend payments due to the holders of Senior Preferred Stock of
such Person, whether payable in cash or in kind, and whether or not actually
paid during such period.
"Subsidiary" means as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person, and provided such corporation, partnership or other entity is
consolidated with such Person for financial reporting purposes under GAAP.
"Swingline Advances" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans not exceeding $30,000,000.
"Swingline Lender" shall mean Bank One, in its capacity as a Lender.
"Swingline Loan" means a Loan made by the Swingline Lender under the
special availability provisions described in Sections 2.15 hereof.
"Total Liabilities" means all Indebtedness plus all other GAAP
liabilities of the Borrower and its Subsidiaries.
-16-
17
"Transferee" is defined in Section 13.4 hereof.
"Unencumbered Asset" means any Project which as of any date of
determination, (a) is not subject to any Liens other than Permitted Liens set
forth in Sections 9.6(i) through 9.6(v), (b) is not subject to any agreement
(including any agreement governing Indebtedness incurred in order to finance or
refinance the acquisition of such asset) which prohibits or limits the ability
of the Borrower, or its Wholly-Owned Subsidiaries, as the case may be, to
create, incur, assume or suffer to exist any Lien upon any assets or Capital
Stock of the Borrower, or any of its Wholly-Owned Subsidiaries, (c) is not
subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset) which
entitles any Person to the benefit of any Lien (but not subject to any Liens
other than Permitted Liens set forth in Sections 9.6(i) through 9.6(v) on any
assets or Capital Stock of the Borrower or any of its Wholly-Owned Subsidiaries
or would entitle any Person to the benefit of any Lien (but excluding the
Permitted Liens set forth in Sections 9.6(i) through 9.6(v) on such assets or
Capital Stock upon the occurrence of any contingency (including, without
limitation, pursuant to an "equal and ratable" clause), (d) is not the subject
of any material architectural/engineering issue, as evidenced by a certification
of Borrower, and (e) is materially compliant with the representations and
warranties in Article VI below. Notwithstanding the foregoing, if any Project is
a "Superfund" site under federal law or a site identified in writing by the
jurisdiction in which such Project is located as having significant
environmental contamination under applicable state law, Borrower shall so advise
the Lenders in writing and the Required Lenders shall have the right to request
from Borrower a current detailed environmental assessment (or one which is not
more than two years old for Unencumbered Assets owned as of the Agreement
Execution Date), and, if applicable, a written estimate of any remediation costs
from a recognized environmental contractor and to exclude any such Project from
Unencumbered Assets at their election. No Project of a Wholly-Owned Subsidiary
shall be deemed to be unencumbered unless both such Project and all Capital
Stock of such Wholly-Owned Subsidiary is unencumbered and neither such
Wholly-Owned Subsidiary nor any other intervening Wholly-Owned Subsidiary
between the Borrower and such Wholly-Owned Subsidiary has any Indebtedness for
borrowed money (other than Indebtedness due to the Borrower). The Borrower
acknowledges that Projects owned by the Guaranteeing Partnership will not
constitute Unencumbered Assets until the PS Guaranty is released.
"Unimproved Land" means land which constitutes a single tax parcel or
separately platted lot and on which construction of an industrial building has
not commenced.
"Value of Unencumbered Assets" means, as of any date, the amount
determined by dividing the Property Operating Income for each Project which is
an Unencumbered Asset as of such date for a calculation period which shall be
either the immediately preceding full fiscal quarter or, if so requested by
Borrower or the Administrative Agent, the then current partial fiscal quarter
(as annualized) by 9.5%. If a Project has been acquired during such calculation
period then Borrower shall be entitled to include pro forma Property Operating
Income from such property for the entire calculation period in the foregoing
calculation, except for purposes of the financial covenant comparing the
Property Operating Income from Unencumbered Assets during a quarter to Debt
Service for such quarter. If a Project is no longer owned as of the date of
calculation, then no value shall be included based on capitalizing Property
Operating Income
-17-
18
from such Project, except for purposes of such financial covenant comparing the
Property Operating Income from Unencumbered Assets during a quarter to Debt
Service for such quarter.
"Wholly-Owned Subsidiary" means a member of the Consolidated Operating
Partnership 100% of the ownership interests in which are owned, directly or
indirectly, by the Borrower and the General Partner in the aggregate.
The foregoing definitions shall be equally applicable to both the
singular and the plural forms of the defined terms.
1.2 Financial Standards. All financial computations required of a
Person under this Agreement shall be made, and all financial information
required under this Agreement shall be prepared, in accordance with GAAP, except
that if any Person's financial statements are not audited, such Person's
financial statements shall be prepared in accordance with the same sound
accounting principles utilized in connection with the financial information
submitted to Lenders with respect to the Borrower or the General Partner or the
Properties in connection with this Agreement and shall be certified by an
authorized representative of such Person.
Article II.
THE FACILITY
2.1 The Facility.
(a) Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of Borrower and
General Partner contained herein, Lenders agree, severally and not
jointly, to make Advances through the Administrative Agent to Borrower
from time to time prior to the Maturity Date, provided that the making
of any such Advance will not cause the then Allocated Facility Amount
to exceed the then-current Aggregate Commitment. The Advances may be
ratable Adjusted Prime Rate Advances, ratable LIBOR Advances, non-pro
rata Swingline Loans or non-pro rata Competitive Bid Loans. Except as
provided in Sections 2.15 and 2.16 hereof, each Lender shall fund its
Percentage of each such Advance and no Lender will be required to fund
any amounts which when aggregated with such Lender's Percentage of (i)
all other Advances (other than Competitive Bid Loans) then outstanding,
(ii) all Swingline Advances and (iii) all Facility Letter of Credit
Obligations would exceed such Lender's then-current Commitment. This
facility ("Facility") is a revolving credit facility and, subject to
the provisions of this Agreement, Borrower may request Advances
hereunder, repay such Advances and reborrow Advances at any time prior
to the Maturity Date.
(b) The Facility created by this Agreement, and that Commitment
of each Lender to lend hereunder, shall terminate on the Maturity Date,
unless sooner terminated in accordance with the terms of this
Agreement.
(c) In no event shall the Aggregate Commitment exceed Four Hundred
Million Dollars ($400,000,000).
-18-
19
2.2 Principal Payments and Extension Option. Any outstanding Advances
(other than Competitive Bid Loans) and all other unpaid Obligations shall be
paid in full by the Borrower on the Maturity Date. Each Competitive Bid Loan
shall be paid in full on the last day of the applicable Interest Period as
described in Section 2.16 below. The Maturity Date can be extended for extension
periods of one year each upon notice to the Administrative Agent not later than
the date which is two years prior to the Maturity Date with respect to the first
such extension of the Maturity Date and not later than each anniversary of such
date thereafter for each subsequent extension of the Maturity Date (each an
"Extension Notice"), if (i) no Default has occurred and is continuing at the
time of such notice and at the time of the then applicable Maturity Date, (ii)
all of the Lenders agree to such extension, (iii) all prior extensions have been
elected by the Borrower and accepted by the Lenders, and (iv) the Borrower pays,
on the first business day of such extension period, an extension fee to the
Administrative Agent for the account of each Lender equal to (i) if such Lender
was a party to this Agreement as of the Agreement Execution Date, one-third
(1/3) of the upfront fee (expressed as a percentage) paid to such Lender
pursuant to the amount of such Lender's Commitment on that date, as applied to
the Commitment of such Lender that will be in effect during such extension or
(ii) if such Lender first became a Lender after the Agreement Execution Date,
one-third (1/3) of the upfront fee that would have been paid to such Lender
pursuant to such Lender's Commitment if such Lender had been a party to this
Agreement as of the Agreement Execution Date and had committed to and been
allocated a Commitment equal to the Commitment of such Lender that will be in
effect during such extension. The upfront fees paid to each Lender pursuant to
this Agreement are as set forth in Schedule 2.2. If the Borrower gives an
Extension Notice to the Administrative Agent, the Administrative Agent shall
notify the Lenders within 10 days of receipt of such request. The Lenders shall
have 30 days after receipt by each such Lender of an Extension Notice to notify
Administrative Agent as to whether they accept or reject such extension request
and Administrative Agent shall notify Borrower and the Lenders promptly
thereafter of the acceptance or rejection of the Lenders of Borrower's request
to extend the Maturity Date. If the foregoing conditions are satisfied other
than the condition requiring the consent of all Lenders, then Borrower shall
have the right to replace any Lender that does not agree to the extension
provided that Borrower notifies such Lender that it has elected to replace such
Lender and notifies such Lender and the Administrative Agent of the identity of
the proposed replacement Lender no later than the date six (6) months after the
date of the applicable Extension Notice. The Lender being replaced shall assign
its Percentage of the Aggregate Commitment and its rights and obligations under
this Facility to the replacement Lender in accordance with the requirements of
Section 13.3 hereof and the replacement Lender shall assume such Percentage of
the Aggregate Commitment and the related obligations under this Facility prior
to the Maturity Date to be extended, all pursuant to an assignment and
assumption agreement substantially in the form of Exhibit J hereto. The purchase
by the replacement Lender shall be at par (plus all accrued and unpaid interest
and any other sums owed to such Lender being replaced hereunder) which shall be
paid to the Lender being replaced upon the execution and delivery of the
assignment.
2.3 Requests for Advances; Responsibility for Advances. Ratable
Advances shall be made available to Borrower by Administrative Agent in
accordance with Section 2.1(a) and Section 2.10(a) hereof. The obligation of
each Lender to fund its Percentage of each ratable Advance shall be several and
not joint.
-19-
20
2.4 Evidence of Credit Extensions. The Advances of each Lender
outstanding at any time (other than Competitive Bid Loans) shall be evidenced by
the Notes. Each Note executed by the Borrower shall be in a maximum principal
amount equal to each Lender's Percentage of the current Aggregate Commitment.
Each Lender shall record Advances and principal payments thereof on the schedule
attached to its Note or, at its option, in its records, and each Lender's record
thereof shall be conclusive absent Borrower furnishing to such Lender conclusive
and irrefutable evidence of an error made by such Lender with respect to that
Lender's records. Notwithstanding the foregoing, the failure to make, or an
error in making, a notation with respect to any Advance shall not limit or
otherwise affect the obligations of Borrower hereunder or under the Notes to pay
the amount actually owed by Borrower to Lenders.
2.5 Ratable and Non-Pro Rata Loans. Each Advance hereunder shall
consist of Loans made from the several Lenders ratably in proportion to their
Percentages, except for Swingline Loans which shall be made by the Swingline
Lender in accordance with Section 2.15 and Competitive Bid Loans which may be
made on a non-pro rata basis by one or more of the Lenders in accordance with
Section 2.16. The ratable Advances may be Adjusted Prime Rate Advances, LIBOR
Advances or a combination thereof, selected by the Borrower in accordance with
Sections 2.9 and 2.10.
2.6 Applicable Margins. The Prime Applicable Margin and the LIBOR
Applicable Margin to be used in calculating the interest rate applicable to
different types of Advances shall vary from time to time in accordance with the
ratings for Borrower's or General Partner's long-term, senior unsecured debt as
follows:
Rating Period:
- ---------------------------------------- ------------------------- ------------------------ ------------------------
LIBOR Prime
Rating Level of Lower of Two Highest Applicable Margin Applicable
Ratings* Facility Fee Margin
- ---------------------------------------- ------------------------- ------------------------ ------------------------
A-/A3 0.65% 0.15% 0
- ---------------------------------------- ------------------------- ------------------------ ------------------------
BBB+/Baa1 0.70% 0.20% 0
- ---------------------------------------- ------------------------- ------------------------ ------------------------
BBB/Baa2 0.80% 0.20% 0
- ---------------------------------------- ------------------------- ------------------------ ------------------------
BBB-/Baa3 0.95% 0.25% 0
- ---------------------------------------- ------------------------- ------------------------ ------------------------
Below BBB- or Baa3 1.25% 0.30% 0.25%
- ---------------------------------------- ------------------------- ------------------------ ------------------------
* The letter categories used above are established by reference to S&P
and Moody's categories, respectively. At least one of S&P or Moody's
ratings must always be included in the two ratings used.
All margins and fees change as and when the applicable rating level
changes. In the event an agency issues different ratings for the Borrower and
the General Partner, then the higher rating of the two entities shall be deemed
to be the rating from such agency.
-20-
21
2.7 Other Fees.
(a) The Borrower shall pay the fee due to the Administrative Agent
in connection with Competitive Bid Loans as described in Section 2.16.
The Borrower agrees to pay all other fees payable to the Administrative
Agent and Banc One Capital Markets, Inc. pursuant to the Borrower's
prior letter agreements with them.
(b) The Borrower shall pay a fee ("Facility Fee") to the
Administrative Agent for the account of the Lenders equal to the
applicable Facility Fee Rate in effect from time to time, as shown in
Section 2.6 hereof, times the then Aggregate Commitment, to be shared
among the Lenders based on their respective Percentages. The Facility
Fee shall be paid quarterly in arrears.
2.8 Minimum Amount of Each Advance. Each LIBOR Advance shall be in the
minimum amount of $2,000,000 (and in multiples of $100,000 if in excess
thereof), and each Adjusted Prime Rate Advance shall be in the minimum amount of
$1,000,000 (and in multiples of $100,000 if in excess thereof), provided,
however, that any Adjusted Prime Rate Advance may be in the amount of the unused
Aggregate Commitment.
2.9 Interest.
(a) The outstanding principal balance under the Notes shall bear
interest from time to time at a rate per annum equal to:
(i) the Adjusted Prime Rate; or
(ii) at the election of Borrower with respect to all or
portions of the Obligations, the Adjusted LIBOR Rate.
(b) All interest shall be calculated for actual days elapsed on
the basis of a 360-day year. Interest accrued on each Advance shall be
payable on the first day of each calendar month in arrears from time to
time while such Advance is outstanding and on the Maturity Date or the
effective date of any termination in full of the Aggregate Commitment
under Section 2.17. Interest shall not be payable for the day of any
payment on the amount paid if payment is received by Administrative
Agent prior to noon (Chicago time). If any payment of principal or
interest under the Notes shall become due on a day that is not a
Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a payment of principal, such extension
of time shall be included in computing interest due in connection with
such payment; provided that for purposes of Section 10.1 hereof, any
payments of principal described in this sentence shall be considered to
be "due" on such next succeeding Business Day.
2.10 Selection of Rate Options and LIBOR Interest Periods.
(a) Borrower, from time to time, may select the Rate Option and,
in the case of each LIBOR Advance, the commencement date (which shall
be a Business Day) and the length of the LIBOR Interest Period
applicable to each LIBOR Advance. Borrower shall give Administrative
Agent irrevocable notice (a "Borrowing Notice" not later than
-21-
22
11:00 a.m. (Chicago time) (i) at least one Business Day prior to an
Adjusted Prime Rate Advance, (ii) at least three (3) Business Days
prior to a ratable LIBOR Advance, and (iii) not later than 11:00 a.m.
(Chicago time) on the Borrowing Date for each Swingline Loan,
specifying:
(i) the Borrowing Date, which shall be a Business Day,
of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the type of Advance selected, and
(iv) in the case of each LIBOR Advance, the LIBOR
Interest Period applicable thereto.
The Borrower shall also deliver together with each Borrowing Notice the
compliance certificate required in Section 5.2 and otherwise comply with the
conditions set forth in Section 5.2 for Advances. Administrative Agent shall
provide each Lender by facsimile with a copy of each Borrowing Notice and
compliance certificate on the same Business Day it is received.
Not later than noon (Chicago time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Chicago to the Administrative Agent. Administrative Agent will promptly make the
funds so received from the Lenders available to the Borrower.
(b) Administrative Agent shall, as soon as practicable after
receipt of a Borrowing Notice, determine the Adjusted LIBOR Rate
applicable to the requested ratable LIBOR Advance and inform Borrower
and Lenders of the same. Each determination of the Adjusted LIBOR Rate
by Administrative Agent shall be conclusive and binding upon Borrower
in the absence of manifest error.
(c) If Borrower shall prepay a LIBOR Advance other than on the
last day of the LIBOR Interest Period applicable thereto, Borrower
shall be responsible to pay all amounts due to Lenders as required by
Section 4.4 hereof. The Lenders shall not be obligated to match fund
their LIBOR Advances.
(d) As of the end of each LIBOR Interest Period selected for a
ratable LIBOR Advance, the interest rate on the LIBOR Advance will
become the Adjusted Prime Rate, unless Borrower has once again selected
a LIBOR Interest Period in accordance with the timing and procedures
set forth in Section 2.10(g).
(e) The right of Borrower to select the Adjusted LIBOR Rate
for an Advance pursuant to this Agreement is subject to the
availability to Lenders of a similar option. If Administrative Agent
determines that (i) deposits of Dollars in an amount approximately
equal to the LIBOR Advance for which the Borrower wishes to select the
Adjusted LIBOR Rate are not generally available at such time in the
London interbank eurodollar market, or (ii) the rate at which the
deposits described in subsection (i) herein are being
-22-
23
offered will not adequately and fairly reflect the costs to Lenders of
maintaining an Adjusted LIBOR Rate on an Advance or of funding the
same in such market for such LIBOR Interest Period, or (iii)
reasonable means do not exist for determining an Adjusted LIBOR Rate,
or (iv) the Adjusted LIBOR Rate would be in excess of the maximum
interest rate which Borrower may by law pay, then in any of such
events, Administrative Agent shall so notify Borrower and Lenders and
such Advance shall bear interest at the Adjusted Prime Rate.
(f) In no event may Borrower elect a LIBOR Interest Period
which would extend beyond the Maturity Date. Unless Lenders agree
thereto, in no event may Borrower have more than ten (10) different
LIBOR Interest Periods for LIBOR Advances outstanding at any one time.
(g) Conversion and Continuation.
(i) Borrower may elect from time to time, subject
to the other provisions of this Section 2.10, to convert all
or any part of a ratable Advance into any other type of
Advance; provided that any conversion of a ratable LIBOR
Advance shall be made on, and only on, the last day of the
LIBOR Interest Period applicable thereto.
(ii) Adjusted Prime Rate Advances shall continue as
Adjusted Prime Rate Advances unless and until such Adjusted
Prime Rate Advances are converted into ratable LIBOR Advances
pursuant to a Conversion/Continuation Notice from Borrower in
accordance with Section 2.10(g)(iv). Ratable LIBOR Advances
shall continue until the end of the then applicable LIBOR
Interest Period therefor, at which time each such Advance
shall be automatically converted into an Adjusted Prime Rate
Advance unless the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice in
accordance with Section 2.10(g)(iv) requesting that, at the
end of such LIBOR Interest Period, such Advance either
continue as an Advance of such type for the same or another
LIBOR Interest Period.
(iii) Notwithstanding anything to the contrary
contained in Sections 2.10(g)(i) or (g)(ii), no Advance may be
converted into a LIBOR Advance or continued as a LIBOR Advance
(except with the consent of the Required Lenders) when any
Monetary Default or Event of Default has occurred and is
continuing.
(iv) The Borrower shall give the Administrative
Agent irrevocable notice (a "Conversion/Continuation Notice")
of each conversion of an Advance or continuation of a LIBOR
Advance not later than 11:00 a.m. (Chicago time) on the
Business Day immediately preceding the date of the requested
conversion, in the case of a conversion into an Adjusted Prime
Rate Advance, or 11:00 a.m. (Chicago time) at least three (3)
Business Days prior to the date of the requested conversion or
continuation, in the case of a conversion into or continuation
of a ratable LIBOR Advance, specifying: (1) the requested date
(which shall be a
-23-
24
Business Day) of such conversion or continuation; (2) the
amount and type of the Advance to be converted or continued;
and (3) the amounts and type(s) of Advance(s) into which
such Advance is to be converted or continued and, in the
case of a conversion into or continuation of a ratable LIBOR
Advance, the duration of the LIBOR Interest Period
applicable thereto.
2.11 Method of Payment. All payments of the Obligations hereunder shall
be made, without set-off, deduction, or counterclaim, in immediately available
funds to Administrative Agent at Administrative Agent's address specified
herein, or at any other Lending Installation of Administrative Agent specified
in writing by Administrative Agent to Borrower, by noon (local time) on the date
when due and shall be applied ratably by Administrative Agent among Lenders.
Each payment delivered to Administrative Agent for the account of any Lender
shall be delivered promptly by Administrative Agent to such Lender in the same
type of funds that Administrative Agent received at its address specified herein
or at any Lending Installation specified in a notice received by Administrative
Agent from such Lender. Administrative Agent is hereby authorized to charge the
account of Borrower maintained with Bank One for each payment of principal,
interest and fees as it becomes due hereunder.
2.12 Default. Notwithstanding the foregoing, during the continuance of
a Monetary Default or an Event of Default, Borrower shall not have the right to
request a LIBOR Advance, request a Competitive Bid Loan, select a new LIBOR
Interest Period for an existing ratable LIBOR Advance or convert any Adjusted
Prime Rate Advance to a ratable LIBOR Advance. During the continuance of a
Monetary Default or an Event of Default, at the election of the Required
Lenders, by notice to Borrower, outstanding Advances shall bear interest at the
applicable Default Rates until such Monetary Default or Event of Default ceases
to exist or the Obligations are paid in full.
2.13 Lending Installations. Each Lender may book its Advances at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Administrative Agent and Borrower, designate a Lending
Installation through which Advances will be made by it and for whose account
payments are to be made.
2.14 Non-Receipt of Funds by Administrative Agent. Unless Borrower or a
Lender, as the case may be, notifies Administrative Agent prior to the date on
which it is scheduled to make payment to Administrative Agent of (i) in the case
of a Lender, an Advance, or (ii) in the case of Borrower, a payment of
principal, interest or fees to the Administrative Agent for the account of the
Lenders, that it does not intend to make such payment, Administrative Agent may
assume that such payment has been made. Administrative Agent may, but shall not
be obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Lender or Borrower, as the
case may be, has not in fact made such payment to Administrative Agent, the
recipient of such payment shall, on demand by Administrative Agent, repay to
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount was
so made available by Administrative Agent until the date Administrative Agent
recovers such
-24-
25
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate (as determined by Administrative Agent) for such
day or (ii) in the case of payment by Borrower, the interest rate applicable to
the relevant Advance.
2.15 Swingline Loans. In addition to the other options available to
Borrower hereunder, the Swingline Commitment shall be available for Swingline
Loans subject to the following terms and conditions. Swingline Loans shall be
made available for same day borrowings provided that notice is given in
accordance with Section 2.10 hereof. All Swingline Loans shall bear interest at
the Adjusted Prime Rate and shall be deemed to be Adjusted Prime Rate Advances.
In no event shall the Swingline Lender be required to fund a Swingline Loan if
it would increase the total aggregate outstanding Loans by Swingline Lender
hereunder plus its Percentage of Facility Letter of Credit Obligations to an
amount in excess of its Commitment. Upon request of the Swingline Lender made to
all the Lenders, each Lender irrevocably agrees to purchase its Percentage of
any Swingline Loan made by the Swingline Lender regardless of whether the
conditions for disbursement are satisfied at the time of such purchase,
including the existence of an Event of Default hereunder provided no Lender
shall be required to have total outstanding Loans (other than Competitive Bid
Loans) plus its Percentage of Facility Letters of Credit to be in an amount
greater than its Commitment. Such purchase shall take place on the date of the
request by Swingline Lender so long as such request is made by noon (Chicago
time), otherwise on the Business Day following such request. All requests for
purchase shall be in writing. From and after the date it is so purchased, each
such Swingline Loan shall, to the extent purchased, (i) be treated as a Loan
made by the purchasing Lenders and not by the selling Lender for all purposes
under this Agreement and the payment of the purchase price by a Lender shall be
deemed to be the making of a Loan by such Lender and shall constitute
outstanding principal under such Lender's Note, and (ii) shall no longer be
considered a Swingline Loan except that all interest accruing on or attributable
to such Swingline Loan for the period prior to the date of such purchase shall
be paid when due by the Borrower to the Administrative Agent for the benefit of
the Swingline Lender and all such amounts accruing on or attributable to such
Loans for the period from and after the date of such purchase shall be paid when
due by the Borrower to the Administrative Agent for the benefit of the
purchasing Lenders. If prior to purchasing its Percentage of a Swingline Loan
one of the events described in Section 10.10 shall have occurred and such event
prevents the consummation of the purchase contemplated by preceding provisions,
each Lender will purchase an undivided participating interest in the outstanding
Swingline Loan in an amount equal to its Percentage of such Swingline Loan. From
and after the date of each Lender's purchase of its participating interest in a
Swingline Loan, if the Swingline Lender receives any payment on account thereof,
the Swingline Lender will distribute to such Lender its participating interest
in such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest was
outstanding and funded); provided, however, that in the event that such payment
was received by the Swingline Lender and is required to be returned to the
Borrower, each Lender will return to the Swingline Lender any portion thereof
previously distributed by the Swingline Lender to it. If any Lender fails to so
purchase its Percentage of any Swingline Loan, such Lender shall be deemed to be
a Defaulting Lender hereunder. No Swingline Loan shall be outstanding for more
than five (5) days at a time and Swingline Loans shall not be outstanding for
more than a total of ten (10) days during any month.
2.16 Competitive Bid Loans.
-25-
26
(a) Competitive Bid Option. In addition to ratable Advances
pursuant to Section 2.5, but subject to the terms and conditions of
this Agreement (including, without limitation the limitation set forth
in Section 2.1(a) as to the maximum Allocated Facility Amount), the
Borrower may, as set forth in this Section 2.16, but only during a
Rating Period, request the Lenders, prior to the Maturity Date, to make
offers to make Competitive Bid Loans to the Borrower. Each Lender may,
but shall have no obligation to, make such offers and the Borrower may,
but shall have no obligation to, accept any such offers in the manner
set forth in this Section 2.16. Competitive Bid Loans shall be
evidenced by the Competitive Bid Notes.
(b) Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.16,
it shall transmit to the Administrative Agent by telecopy a Competitive
Bid Quote Request substantially in the form of Exhibit C-1 hereto so as
to be received no later than (i) 10:00 a.m. (Chicago time) at least
five Business Days prior to the Borrowing Date proposed therein, in the
case of a request for a Competitive LIBOR Margin or (ii) 9:00 a.m.
(Chicago time) at least one Business Day prior to the Borrowing Date
proposed therein, in the case of a request for an Absolute Rate
specifying:
(i) the proposed Borrowing Date for the proposed
Competitive Bid Loan,
(ii) the requested aggregate principal amount of
such Competitive Bid Loan,
(iii) whether the Competitive Bid Quotes requested
are to set forth a Competitive LIBOR Margin or an Absolute
Rate, or both, and
(iv) the LIBOR Interest Period, if a Competitive
LIBOR Margin is requested, or the Absolute Interest Period, if
an Absolute Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period (but not more than five Interest Periods) in a single
Competitive Bid Quote Request. No Competitive Bid Quote Request shall be given
within five Business Days (or such other number of days as the Borrower and the
Administrative Agent may agree) of any other Competitive Bid Quote Request. A
Competitive Bid Quote Request that does not conform substantially to the form of
Exhibit C-1 hereto shall be rejected, and the Administrative Agent shall
promptly notify the Borrower of such rejection by telecopy.
(c) Invitation for Competitive Bid Quotes. Promptly and in any
event before the close of business on the same Business Day of receipt
of a Competitive Bid Quote Request that is not rejected pursuant to
Section 2.16(b), the Administrative Agent shall send to each of the
Lenders by telecopy an Invitation for Competitive Bid Quotes
substantially in the form of Exhibit C-2 hereto, which shall constitute
an invitation by the Borrower to each Lender to submit Competitive Bid
Quotes offering to make the Competitive Bid Loans to which such
Competitive Bid Quote Request relates in accordance with this Section
2.16.
-26-
27
(d) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion,
submit a Competitive Bid Quote containing an offer or offers
to make Competitive Bid Loans in response to any Invitation
for Competitive Bid Quotes. Each Competitive Bid Quote must
comply with the requirements of this Section 2.16(d) and must
be submitted to the Administrative Agent by telex or telecopy
at its offices not later than (a) 2:00 p.m. (Chicago time) at
least four Business Days prior to the proposed Borrowing Date,
in the case of a request for a Competitive LIBOR Margin or (b)
9:00 a.m. (Chicago time) on the proposed Borrowing Date, in
the case of a request for an Absolute Rate (or, in either case
upon reasonable prior notice to the Lenders, such other time
and rate as the Borrower and the Administrative Agent may
agree); provided that Competitive Bid Quotes submitted by Bank
One may only be submitted if the Administrative Agent or Bank
One notifies the Borrower of the terms of the Offer or Offers
contained therein no later than 30 minutes prior to the latest
time at which the relevant Competitive Bid Quotes must be
submitted by the other Lenders. Subject to the Borrower's
compliance with all other conditions to disbursement herein,
any Competitive Bid Quote so made shall be irrevocable except
with the written consent of the Administrative Agent given on
the instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit C-3 hereto and shall in any
case specify:
(e) the proposed Borrowing Date, which shall be the same as
that set forth in the applicable Invitation for Competitive Bid Quotes,
(f) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (1) may be
greater than, less than or equal to the Commitment of the quoting
Lender, (2) must be at least $10,000,000 and an integral multiple of
$1,000,000, and (3) may not exceed the principal amount of Competitive
Bid Loans for which offers are requested,
(g) as applicable, the Competitive LIBOR Margin and Absolute
Rate offered for each such Competitive Bid Loan,
(h) the minimum amount, if any, of the Competitive Bid Loan
which may be accepted by the Borrower, and
(i) the identity of the quoting Lender, provided that such
Competitive Bid Loan may be funded by such Lender's Designated Lender
as provided in Section 2.16(j), regardless of whether that is specified
in the Competitive Bid Quote.
(iii) The Administrative Agent shall reject any
Competitive Bid Quote that:
(j) is not substantially in the form of Exhibit C-3 hereto or
does not specify all of the information required by Section
2.16(d)(ii),
-27-
28
(k) contains qualifying, conditional or similar language,
other than any such language contained in Exhibit C-3 hereto,
(l) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes, or
(m) arrives after the time set forth in Section 2.16(d)(i).
If any Competitive Bid Quote shall be rejected pursuant to
this Section 2.16(d)(iii), then the Administrative Agent shall
notify the relevant Lender of such rejection as soon as
practical.
(n) Notice to Borrower. The Administrative Agent shall
promptly notify the Borrower of the terms (i) of any Competitive Bid
Quote submitted by a Lender that is in accordance with Section 2.16(d)
and (ii) of any Competitive Bid Quote that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote submitted
by such Lender with respect to the same Competitive Bid Quote Request.
Any such subsequent Competitive Bid Quote shall be disregarded by the
Administrative Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest
error in such former Competitive Bid Quote. The Administrative Agent's
notice to the Borrower shall specify the aggregate principal amount of
Competitive Bid Loans for which offers have been received for each
Interest Period specified in the related Competitive Bid Quote Request
and the respective principal amounts and Competitive LIBOR Margins or
Absolute Rate, as the case may be, so offered.
(o) Acceptance and Notice by Borrower. Not later than (i) 6:00
p.m. (Chicago time) at least four Business Days prior to the proposed
Borrowing Date in the case of a request for a Competitive LIBOR Margin
or (ii) 10:00 a.m. (Chicago time) on the proposed Borrowing Date, in
the case of a request for an Absolute Rate (or, in either case upon
reasonable prior notice to the Lenders, such other time and date as the
Borrower and the Administrative Agent may agree), the Borrower shall
notify the Administrative Agent of its acceptance or rejection of the
offers so notified to it pursuant to Section 2.16(e); provided,
however, that the failure by the Borrower to give such notice to the
Administrative Agent shall be deemed to be a rejection of all such
offers. In the case of acceptance, such notice (a "Competitive Bid
Borrowing Notice") shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Borrower may
accept any Competitive Bid Quote in whole or in part (subject to the
terms of Section 2.16(d)(iii)); provided that:
(i) the aggregate principal amount of all
Competitive Bid Loans to be disbursed on a given Borrowing
Date may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request,
(ii) acceptance of offers may only be made on the
basis of ascending Competitive LIBOR Margins or Absolute
Rates, as the case may be, and
-28-
29
(iii) the Borrower may not accept any offer that
is described in Section 2.16(d)(iii) or that otherwise fails
to comply with the requirements of this Agreement.
(p) Allocation by Administrative Agent. If offers are made by
two or more Lenders with the same Competitive LIBOR Margins or Absolute
Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which offers are accepted for the related
Interest Period, the principal amount of Competitive Bid Loans in
respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in such
multiples, not greater than $1,000,000, as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amount of
such offers provided, however, that no Lender shall be allocated any
Competitive Bid Loan which is less than the minimum amount which such
Lender has indicated that it is willing to accept. Allocations by the
Administrative Agent of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error. The Administrative Agent
shall promptly, but in any event on the same Business Day, notify each
Lender of its receipt of a Competitive Bid Borrowing Notice and the
principal amounts of the Competitive Bid Loans allocated to each
participating Lender.
(q) Administration Fee. The Borrower hereby agrees to pay to
the Administrative Agent an administration fee of $2,500 per each
Competitive Bid Quote Request transmitted by the Borrower to the
Administrative Agent pursuant to Section 2.16(b). Such administration
fee shall be payable monthly in arrears on the first Business Day of
each month and on the Maturity Date (or such earlier date on which the
Aggregate Commitment shall terminate or be cancelled) for any period
then ending for which such fee, if any, shall not have been theretofore
paid.
(i) Other Terms. Any Competitive Bid Loan shall not reduce the
Commitment of the Bid Lender making such Competitive Bid Loan (except as the
availability of other Advances is reduced by the increase in the Allocated
Facility Amount due to such Competitive Bid Loan) and each such Bid Lender shall
continue to be obligated to fund its full percentage of all pro rata Advances
under the Facility. In no event can the aggregate amount of all Competitive Bid
Loans at any time exceed the lesser of (i) 50% of the then Aggregate Commitment,
or (ii) Two Hundred Million Dollars ($200,000,000.00). Competitive Bid Loans may
not be continued and, if not repaid at the end of the Interest Period applicable
thereto, shall (subject to the conditions set forth in this Agreement) be
replaced by new Competitive Bid Loans made in accordance with this Section 2.16
or by ratable Advances in accordance with Section 2.10.
(r) Designated Lenders. A Lender may designate its Designated
Lender to fund a Competitive Bid Loan on its behalf as described in
Section 2.16(d)(ii)(e). Any Designated Lender which funds a Competitive
Bid Loan shall on and after the time of such funding become the obligee
under such Competitive Bid Loan and be entitled to receive payment
thereof when due. No Lender shall be relieved of its obligation to fund
a Competitive Bid Loan, and no Designated Lender shall assume such
obligation, prior to the time such Competitive Bid Loan is funded.
-29-
30
2.17 Voluntary Reduction of Aggregate Commitment Amount. Upon at least
five (5) days prior irrevocable written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent, Borrower shall have the
right, without premium or penalty, to terminate the Aggregate Commitment in
whole or in part provided that (a) Borrower may not reduce the Aggregate
Commitment below the Allocated Facility Amount at the time of such requested
reduction, and (b) any such partial termination shall be in the minimum
aggregate amount of Five Million Dollars (U.S. $5,000,000.00) or any integral
multiple of Five Million Dollars (U.S. $5,000,000.00) in excess thereof. Any
partial termination of the Aggregate Commitment shall be applied pro rata to
each Lender's Commitment.
2.18 Increase in Aggregate Commitment. The Borrower shall also have the
right from time to time to increase the Aggregate Commitment up to a maximum of
$400,000,000 by either adding new banks as Lenders (subject to the
Administrative Agent's prior written approval of the identity of such new banks)
or obtaining the agreement, which shall be at such Lender's or Lenders' sole
discretion, of one or more of the then current Lenders to increase its or their
Commitments. Such increases shall be evidenced by the execution and delivery of
an Amendment Regarding Increase in the form of Exhibit L attached hereto by the
Borrower, the Administrative Agent and the new bank or existing Lender providing
such additional Commitment, a copy of which shall be forwarded to each Lender by
the Administrative Agent promptly after execution thereof. On the effective date
of each such increase in the Aggregate Commitment, the Borrower and the
Administrative Agent shall cause the new or existing Lenders providing such
increase, by either funding more than its or their Percentage of new ratable
Advances made on such date or purchasing shares of outstanding ratable Loans
held by the other Lenders or a combination thereof, to hold its or their
Percentage of all ratable Advances outstanding at the close of business on such
day. The Lenders agree to cooperate in any required sale and purchase of
outstanding ratable Advances to achieve such result. In no event will such new
or existing Lenders providing the increase be required to fund or purchase a
portion of any Competitive Bid Loan or Swingline Loan to comply with this
Section on such date. In no event shall the Aggregate Commitment exceed
$400,000,000 without the approval of all of the Lenders.
2.19 Application of Moneys Received. All moneys collected or received
by the Administrative Agent on account of the Facility directly or indirectly,
shall be applied in the following order of priority:
(i) to the payment of all reasonable costs
incurred in the collection of such moneys of which the
Administrative Agent shall have given notice to the Borrower;
(ii) to the reimbursement of any yield protection
due to any of the Lenders in accordance with Section 4.1;
(iii) first to the payment of any fee due pursuant
to Section 3.8(b) in connection with the issuance of a
Facility Letter of Credit to the Issuing Bank until such fee
is paid in full, then next to the payment of the Facility Fee
and Facility Letter of Credit Fee to the Lenders, if then due,
in that order on a pro rata
-30-
31
basis in accordance with the respective amounts of such fees
due to the Lenders and then finally to the payment of all
fees then due to the Administrative Agent;
(iv) to payment of the full amount of interest and
principal on the Swingline Loans;
(v) first to interest until paid in full and then
to principal for all Lenders (other than Defaulting Lenders)
(i) as allocated by the Borrower (unless an Event of Default
exists) between Competitive Bid Loans and ratable Advances
(the amount allocated to ratable Advances to be distributed in
accordance with the Percentages of the Lenders) or (ii) if an
Event of Default exists, in accordance with the respective
Funded Percentages of the Lenders;
(vi) any other sums due to the Administrative
Agent or any Lender under any of the Loan Documents; and
(vii) to the payment of any sums due to each
Defaulting Lender as their respective Percentages appear
(provided that Administrative Agent shall have the right to
set-off against such sums any amounts due from such Defaulting
Lender).
2.20 Withholding Tax Exemption. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each of
the Borrower and the Administrative Agent two duly completed copies of an
appropriate United States Internal Revenue Service form, certifying that such
Lender is entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States federal income taxes. Each
Lender which so delivers a form further undertakes to deliver to each of the
Borrower and the Administrative Agent two additional copies of such form (or a
successor form) on or before the date that such form expires or becomes obsolete
or after the occurrence of any event requiring a change in the most recent forms
so delivered by it, and such amendments thereto or extensions or renewals
thereof as may be reasonably requested by the Borrower or the Administrative
Agent, in each case certifying that such Lender is entitled to receive payments
under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender advises the
Borrower and the Administrative Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
-31-
32
Article III.
THE LETTER OF CREDIT SUBFACILITY
3.1 Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower and the General Partner herein set forth, the Issuing Bank hereby
agrees to issue for the account of Borrower, one or more Facility Letters of
Credit in accordance with this Article III, from time to time during the period
commencing on the Agreement Execution Date and ending on a date one Business Day
prior to the Maturity Date. The Issuing Bank has, as of the Agreement Execution
Date, issued three letters of credit under the Borrower's Existing Credit
Agreement in the face amounts of $979,678.50, $20,000.00, and $96,695.00 which
letters of credit shall be deemed Facility Letters of Credit hereunder.
3.2 Types and Amounts. The Issuing Bank shall not have any obligation
to:
(i) issue any Facility Letter of Credit if the aggregate
maximum amount then available for drawing under Letters of Credit
issued by such Issuing Bank, after giving effect to the Facility Letter
of Credit requested hereunder, shall exceed any limit imposed by law or
regulation upon such Issuing Bank;
(ii) issue any Facility Letter of Credit if, after giving
effect thereto, either (1) the then applicable Allocated Facility
Amount would exceed the then current Aggregate Commitment, or (2) the
Facility Letter of Credit Obligations would exceed $30,000,000;
(iii) issue any Facility Letter of Credit having an
expiration date, or containing automatic extension provision to extend
such date, to a date which is after the Business Day immediately
preceding the Maturity Date; or
(iv) issue any Facility Letter of Credit having an
expiration date, or containing automatic extension provisions to extend
such date, to a date which is more than twelve (12) months after the
date of its issuance.
3.3 Conditions. In addition to being subject to the satisfaction of the
conditions contained in Article V hereof, the obligation of the Issuing Bank to
issue any Facility Letter of Credit is subject to the satisfaction in full of
the following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at
such times and in such manner as the Issuing Bank may reasonably
prescribe such documents and materials as may be reasonably required
pursuant to the terms of the proposed Facility Letter of Credit (it
being understood that if any inconsistency exists between such
documents and the Loan Documents, the terms of the Loan Documents shall
control) and the proposed Facility Letter of Credit shall be reasonably
satisfactory to the Issuing Bank as to form and content;
(ii) as of the date of issuance, no order, judgment or decree
of any court, arbitrator or governmental authority shall purport by its
terms to enjoin or restrain the
-32-
33
Issuing Bank from issuing the requested Facility Letter of Credit and
no law, rule or regulation applicable to the Issuing Bank and no
request or directive (whether or not having the force of law) from any
governmental authority with jurisdiction over the Issuing Bank shall
prohibit or request that the Issuing Bank refrain from the issuance of
Letters of Credit generally or the issuance of the requested Facility
Letter of Credit in particular; and
(iii) there shall not exist any Default or Event of Default.
3.4 Procedure for Issuance of Facility Letters of Credit.
(a) Borrower shall give the Issuing Bank and the
Administrative Agent at least two (2) Business Days' prior written
notice of any requested issuance of a Facility Letter of Credit under
this Agreement (a "Letter of Credit Request"), a copy of which shall be
sent immediately to all Lenders (except that, in lieu of such written
notice, the Borrower may give the Issuing Bank and the Administrative
Agent telephonic notice of such request if confirmed in writing by
delivery to the Issuing Bank and the Administrative Agent (i)
immediately (A) of a telecopy of the written notice required hereunder
which has been signed by an authorized officer, or (B) of a telex
containing all information required to be contained in such written
notice and (ii) promptly (but in no event later than the requested date
of issuance) of the written notice required hereunder containing the
original signature of an authorized officer); such notice shall be
irrevocable and shall specify:
(1) whether the requested Facility Letter of Credit is, in
Borrower's belief, a Financial Letter of Credit or a
Performance Letter of Credit;
(2) the stated amount of the Facility Letter of Credit requested
(which stated amount shall not be less than $50,000);
(3) the effective date (which day shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the
"Issuance Date");
(4) the date on which such requested Facility Letter of Credit is
to expire;
(5) the purpose for which such Facility Letter of Credit is to be
issued;
(6) the Person for whose benefit the requested Facility Letter of
Credit is to be issued; and
(7) any special language required to be included in the Facility
Letter of Credit.
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of the
Facility Letter of Credit that the Borrower is requesting be issued. Such
notice, to be effective, must be received by such Issuing Bank and the
Administrative Agent not later than 2:00 p.m. (Chicago time) on the last
Business Day on which notice can be given under this Section 3.4(a).
-33-
34
(b) Subject to the terms and conditions of this Article III
and provided that the applicable conditions set forth in Article V
hereof have been satisfied, the Issuing Bank shall, on the Issuance
Date, issue a Facility Letter of Credit on behalf of the Borrower in
accordance with the Letter of Credit Request and the Issuing Bank's
usual and customary business practices unless the Issuing Bank has
actually received (i) written notice from the Borrower specifically
revoking the Letter of Credit Request with respect to such Facility
Letter of Credit, (ii) written notice from a Lender, which complies
with the provisions of Section 3.6(a), or (iii) written or telephonic
notice from the Administrative Agent stating that the issuance of such
Facility Letter of Credit would violate Section 3.2.
(c) The Issuing Bank shall give the Administrative Agent (who
shall promptly notify Lenders) and the Borrower written or telex
notice, or telephonic notice confirmed promptly thereafter in writing,
of the issuance of a Facility Letter of Credit (the "Issuance Notice"),
which shall indicate the Issuing Bank's reasonable determination as to
whether such Facility Letter of Credit is a Financial Letter of Credit
or a Performance Letter of Credit, which determination shall be
conclusive absent manifest error.
(d) The Issuing Bank shall not extend or amend any Facility
Letter of Credit unless the requirements of this Section 3.4 are met as
though a new Facility Letter of Credit was being requested and issued.
3.5 Reimbursement Obligations; Duties of Issuing Bank.
(a) The Issuing Bank shall promptly notify the Borrower and
the Administrative Agent (who shall promptly notify Lenders) of any
draw under a Facility Letter of Credit. Any such draw shall constitute
an Advance of the Facility in the amount of the Reimbursement
Obligation with respect to such Facility Letter of Credit and shall
bear interest from the date of the relevant drawing(s) under the
pertinent Facility Letter of Credit at a rate selected by Borrower in
accordance with Section 2.10 hereof; provided that if a Monetary
Default or an Event of Default exists at the time of any such
drawing(s), then the Borrower shall reimburse the Issuing Bank for
drawings under a Facility Letter of Credit issued by the Issuing Bank
no later than the next succeeding Business Day after the payment by the
Issuing Bank and until repaid such Reimbursement Obligation shall bear
interest at the Default Rate.
(b) Any action taken or omitted to be taken by the Issuing
Bank under or in connection with any Facility Letter of Credit, if
taken or omitted in the absence of willful misconduct or gross
negligence, shall not put the Issuing Bank under any resulting
liability to any Lender or, provided that such Issuing Bank has
complied with the procedures specified in Section 3.4 and such Lender
has not given a notice contemplated by Section 3.6(a) that continues in
full force and effect, relieve that Lender of its obligations hereunder
to the Issuing Bank. In determining whether to pay under any Facility
Letter of Credit, the Issuing Bank shall have no obligation relative to
the Lenders other than to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered in
compliance, and that they appear to comply on their face, with the
requirements of such Letter of Credit.
-34-
35
3.6 Participation.
(a) Immediately upon issuance by the Issuing Bank of any
Facility Letter of Credit in accordance with the procedures set forth
in Section 3.4, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuing Bank, without
recourse, representation or warranty, an undivided interest and
participation equal to such Lender's Percentage in such Facility Letter
of Credit (including, without limitation, all obligations of the
Borrower with respect thereto) and all related rights hereunder and
under the Guaranty and other Loan Documents; provided that a Letter of
Credit issued by the Issuing Bank shall not be deemed to be a Facility
Letter of Credit for purposes of this Section 3.6 if the Issuing Bank
shall have received written notice from any Lender on or before the
Business Day prior to the date of its issuance of such Letter of Credit
that one or more of the conditions contained in Section 5.2 is not then
satisfied, and in the event the Issuing Bank receives such a notice it
shall have no further obligation to issue any Facility Letter of Credit
until such notice is withdrawn by that Lender or the Issuing Bank
receives a notice from the Administrative Agent that such condition has
been effectively waived in accordance with the provisions of this
Agreement. Each Lender's obligation to make further Loans to Borrower
(other than any payments such Lender is required to make under
subparagraph (b) below) or to purchase an interest from the Issuing
Bank in any subsequent letters of credit issued by the Issuing Bank on
behalf of Borrower shall be reduced by such Lender's Percentage of the
undrawn portion of each Facility Letter of Credit outstanding.
(b) In the event that the Issuing Bank makes any payment under
any Facility Letter of Credit and the Borrower shall not have repaid
such amount to the Issuing Bank pursuant to Section 3.7 hereof, the
Issuing Bank shall promptly notify the Administrative Agent, which
shall promptly notify each Lender of such failure, and each Lender
shall promptly and unconditionally pay to the Administrative Agent for
the account of the Issuing Bank the amount of such Lender's Percentage
of the unreimbursed amount of such payment, and the Administrative
Agent shall promptly pay such amount to the Issuing Bank. Lender's
payments of its Percentage of such Reimbursement Obligation as
aforesaid shall be deemed to be a Loan by such Lender and shall
constitute outstanding principal under such Lender's Note. The failure
of any Lender to make available to the Administrative Agent for the
account of the Issuing Bank its Percentage of the unreimbursed amount
of any such payment shall not relieve any other Lender of its
obligation hereunder to make available to the Administrative Agent for
the account of such Issuing Bank its Percentage of the unreimbursed
amount of any payment on the date such payment is to be made, but no
Lender shall be responsible for the failure of any other Lender to make
available to the Administrative Agent its Percentage of the
unreimbursed amount of any payment on the date such payment is to be
made. Any Lender which fails to make any payment required pursuant to
this Section 3.6(b) shall be deemed to be a Defaulting Lender
hereunder.
(c) Whenever the Issuing Bank receives a payment on account of
a Reimbursement Obligation, including any interest thereon, the Issuing
Bank shall promptly pay to the Administrative Agent and the
Administrative Agent shall promptly
-35-
36
pay to each Lender which has funded its participating interest
therein, in immediately available funds, an amount equal to such
Lender's Percentage thereof.
(d) Upon the request of the Administrative Agent or any
Lender, the Issuing Bank shall furnish to such Administrative Agent or
Lender copies of any Facility Letter of Credit to which the Issuing
Bank is party and such other documentation as may reasonably be
requested by the Administrative Agent or Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of the Issuing Bank with respect
to a Facility Letter of Credit shall be absolute, unconditional and
irrevocable, not subject to any counterclaim, set-off, qualification or
exception whatsoever other than a failure of any such Issuing Bank to
comply with the terms of this Agreement relating to the issuance of
such Facility Letter of Credit, and such payments shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances.
3.7 Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of the Issuing Bank the amount of all Advances for
Reimbursement Obligations, interest and other amounts payable to the
Issuing Bank under or in connection with any Facility Letter of Credit
when due, irrespective of any claim, set-off, defense or other right
which the Borrower may have at any time against any Issuing Bank or any
other Person, under all circumstances, including without limitation any
of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense
or other right which the Borrower may have at any time against
a beneficiary named in a Facility Letter of Credit or any
transferee of any Facility Letter of Credit (or any Person for
whom any such transferee may be acting), the Administrative
Agent, the Issuing Bank, any Lender, or any other Person,
whether in connection with this Agreement, any Facility Letter
of Credit, the transactions contemplated herein or any
unrelated transactions (including any underlying transactions
between the Borrower and the beneficiary named in any Facility
Letter of Credit);
(iii) any draft, certificate or any other document
presented under the Facility Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect of
any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security
for the performance or observance of any of the terms of any
of the Loan Documents; or
(v) the occurrence of any Default or Event of
Default.
(b) In the event any payment by the Borrower received by the
Issuing Bank or the Administrative Agent with respect to a Facility
Letter of Credit and distributed by the
-36-
37
Administrative Agent to the Lenders on account of their participations
is thereafter set aside, avoided or recovered from the Administrative
Agent or Issuing Bank in connection with any receivership, liquidation,
reorganization or bankruptcy proceeding, each Lender which received
such distribution shall, upon demand by the Administrative Agent,
contribute such Lender's Percentage of the amount set aside, avoided or
recovered together with interest at the rate required to be paid by the
Issuing Bank or the Administrative Agent upon the amount required to be
repaid by the Issuing Bank or the Administrative Agent.
3.8 Compensation for Facility Letters of Credit.
(a) The Borrower shall pay to the Administrative Agent, for
the ratable account of the Lenders, based upon the Lenders' respective
Percentages, a per annum fee (the "Facility Letter of Credit Fee") with
respect to each Facility Letter of Credit that is equal to (i) the
LIBOR Applicable Margin in effect from time to time in the case of
Financial Letters of Credit, and (ii) the LIBOR Applicable Margin from
time to time minus 0.25% in the case of Performance Letters of Credit.
The Facility Letter of Credit Fee relating to any Facility Letter of
Credit shall be due and payable in arrears in equal installments on the
first Business Day of each month following the issuance of any Facility
Letter of Credit and, to the extent any such fees are then due and
unpaid, on the Maturity Date. The Administrative Agent shall promptly
remit such Facility Letter of Credit Fees, when paid, to the other
Lenders in accordance with their Percentages thereof. The Borrower
shall not have any liability to any Lender for the failure of the
Administrative Agent to promptly deliver funds to any such Lender and
shall be deemed to have made all such payments on the date the
respective payment is made by the Borrower to the Administrative Agent,
provided such payment is received by the time specified in Section 2.11
hereof.
(b) The Issuing Bank also shall have the right to receive
solely for its own account an issuance fee of 0.15% of the face amount
of each Facility Letter of Credit, payable by the Borrower on the
Issuance Date for each such Facility Letter of Credit. The Issuing Bank
shall also be entitled to receive its reasonable out-of-pocket costs
and the Issuing Bank's standard charges of issuing, amending and
servicing Facility Letters of Credit and processing draws thereunder.
3.9 Letter of Credit Collateral Account. The Borrower hereby agrees
that it will, until the Maturity Date, maintain a special collateral account
(the "Letter of Credit Collateral Account") at the Administrative Agent's office
at the address specified pursuant to Article XV, in the name of the Borrower but
under the sole dominion and control of the Administrative Agent, for the benefit
of the Lenders, and in which the Borrower shall have no interest other than as
set forth in Section 11.1. In addition to the foregoing, the Borrower hereby
grants to the Administrative Agent, for the benefit of the Lenders, a security
interest in and to the Letter of Credit Collateral Account and any funds that
may hereafter be on deposit in such account, including income earned thereon.
The Lenders acknowledge and agree that the Borrower has no obligation to fund
the Letter of Credit Collateral Account unless and until so required under
Section 11.1 hereof.
-37-
38
Article IV.
CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If the adoption of or change in any law or any
governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any interpretation
thereof, or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or
from payments due from Borrower (excluding federal and state
taxation of the overall net income of any Lender or applicable
Lending Installation), or changes the basis of such taxation
of payments to any Lender in respect of its Advances, its
interest in the Facility Letters of Credit or other amounts
due it hereunder, or
(ii) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to LIBOR Advances), or
(iii) imposes any other condition, and the result
is to increase the cost of any Lender or any applicable
Lending Installation of making, funding or maintaining loans
or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with loans, or
requires any Lender or any applicable Lending Installation to
make any payment calculated by reference to the amount of
loans held, Letters of Credit issued or participated in or
interest received by it, by an amount deemed material by such
Lender,
then, within fifteen (15) days of demand by such Lender, Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Advances and its Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporate entity controlling such
Lender is increased as a result of a Change (as defined below), then, within
fifteen (15) days of demand by such Lender, Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines is attributable
to this Agreement, its Advances, its interest in the Facility Letters of Credit,
or its obligation to make Advances hereunder or participate in or issue Facility
Letters of Credit hereunder (after taking into account such Lender's policies as
to capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines (as defined below) or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any
-38-
39
Lender or any Lending Installation or any corporation controlling any Lender.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards",
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement. Without in any way affecting the Borrower's
obligation to pay compensation actually claimed by a Lender under this Section
4.2, the Borrower shall have the right to replace any Lender which has demanded
such compensation provided that Borrower notifies such Lender that it has
elected to replace such Lender and notifies such Lender and the Administrative
Agent of the identity of the proposed replacement Lender not more than six (6)
months after the date of such Lender's most recent demand for compensation under
this Section 4.2. The Lender being replaced shall assign its Percentage of the
Aggregate Commitment and its rights and obligations under this Facility to the
replacement Lender in accordance with the requirements of Section 13.3 hereof
and the replacement Lender shall assume such Percentage of the Aggregate
Commitment and the related obligations under this Facility prior to the Maturity
Date to be extended, all pursuant to an assignment agreement substantially in
the form of Exhibit J hereto. The purchase by the replacement Lender shall be at
par (plus all accrued and unpaid interest and any other sums owed to such Lender
being replaced hereunder) which shall be paid to the Lender being replaced upon
the execution and delivery of the assignment.
4.3 Availability of LIBOR Advances. If any Lender determines that
maintenance of any of its LIBOR Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive of any Governmental
Authority having jurisdiction, the Administrative Agent shall suspend by written
notice to Borrower the availability of LIBOR Advances and require any LIBOR
Advances to be repaid; or if the Required Lenders determine that (i) deposits of
a type or maturity appropriate to match fund LIBOR Advances are not available,
the Administrative Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances with respect to any LIBOR Advances made after the
date of any such determination, or (ii) an interest rate applicable to a LIBOR
Advance does not accurately reflect the cost of making a LIBOR Advance, and, if
for any reason whatsoever the provisions of Section 4.1 are inapplicable, the
Administrative Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances with respect to any LIBOR Advances made after the
date of any such determination.
4.4 Funding Indemnification. If any payment of a ratable LIBOR Advance
or a Competitive Bid Loan occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or a ratable LIBOR Advance or a Competitive Bid Loan is not made on
the date specified by Borrower for any reason other than default by one or more
of the Lenders, Borrower will indemnify each Lender for any loss or cost
incurred by such Lender resulting therefrom, including, without limitation, any
loss or cost in liquidating or employing deposits acquired to fund or maintain
the ratable LIBOR Advance or Competitive Bid Loan, as the case may be.
4.5 Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its LIBOR
-39-
40
Advances to reduce any liability of Borrower to such Lender under Sections 4.1
and 4.2 or to avoid the unavailability of a LIBOR Advance, so long as such
designation is not disadvantageous to such Lender. Each Lender shall deliver a
written statement of such Lender as to the amount due, if any, under Sections
4.1, 4.2 or 4.4 hereof. Such written statement shall set forth in reasonable
detail the calculations upon which such Lender determined such amount and shall
be final, conclusive and binding on Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a LIBOR
Advance shall be calculated as though each Lender funded its LIBOR Advance
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Adjusted LIBOR Rate applicable to
such Advance, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement shall be payable on demand
after receipt by Borrower of the written statement. The obligations of Borrower
under Sections 4.1, 4.2 and 4.4 hereof shall survive payment of the Obligations
and termination of this Agreement.
Article V.
CONDITIONS PRECEDENT
5.1 Conditions Precedent to Closing. The Lenders shall not be required
to make the initial Advance hereunder, nor shall the Issuing Bank be required to
issue the initial Facility Letter of Credit hereunder, unless (i) the Borrower
shall have paid all fees then due and payable to the Lenders, Banc One Capital
Markets, Inc. and the Administrative Agent hereunder, (ii) all of the conditions
set forth in Section 5.2 are satisfied, and (iii) the Borrower shall have
furnished to the Administrative Agent, in form and substance satisfactory to the
Lenders and their counsel and with sufficient copies for the Lenders, the
following:
(a) Certificates of Limited Partnership/Incorporation. A copy
of the Certificate of Limited Partnership for the Borrower and a copy
of the articles of incorporation of General Partner, each certified by
the appropriate Secretary of State or equivalent state official.
(b) Agreements of Limited Partnership/Bylaws. A copy of the
Agreement of Limited Partnership for the Borrower and a copy of the
bylaws of the General Partner, including all amendments thereto, each
certified by the Secretary or an Assistant Secretary of the General
Partner as being in full force and effect on the Agreement Execution
Date.
(c) Good Standing Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of
the states where the Borrower and General Partner are organized, dated
as of the most recent practicable date, showing the good standing or
partnership qualification (if issued) of (i) Borrower, and (ii) General
Partner.
(d) Foreign Qualification Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of
the state where the Borrower and General Partner maintain their
principal place of business, dated as of the most recent
-40-
41
practicable date, showing the qualification to transact business in
such state as a foreign limited partnership or foreign corporation, as
the case may be, for (i) Borrower, and (ii) General Partner.
(e) Resolutions. A copy of a resolution or resolutions adopted
by the Board of Directors of the General Partner, certified by the
Secretary or an Assistant Secretary of the General Partner as being in
full force and effect on the Agreement Execution Date, authorizing the
Advances provided for herein and the execution, delivery and
performance of the Loan Documents by the General Partner to be executed
and delivered by it hereunder on behalf of itself and Borrower.
(f) Incumbency Certificate. A certificate, signed by the
Secretary or an Assistant Secretary of the General Partner and dated
the Agreement Execution Date, as to the incumbency, and containing the
specimen signature or signatures, of the Persons authorized to execute
and deliver the Loan Documents to be executed and delivered by it and
Borrower hereunder.
(g) Loan Documents. Originals of the Loan Documents (in such
quantities as the Lenders may reasonably request), duly executed by
authorized officers of the appropriate entity.
(h) Opinion of Borrower's Counsel. A written opinion, dated
the Agreement Execution Date, from outside counsel for the Borrower
which counsel is reasonably satisfactory to Administrative Agent,
substantially in the form attached hereto as Exhibit E.
(i) Opinion of General Partner's Counsel. A written opinion,
dated the Agreement Execution Date, from outside counsel for the
General Partner which counsel is reasonably satisfactory to
Administrative Agent, substantially in the form attached hereto as
Exhibit F.
(j) Insurance. Original or certified copies of insurance
policies or binders therefor, with accompanying receipts showing
current payment of all premiums, evidencing that Borrower carries
insurance on the Unencumbered Assets which satisfies the Administrative
Agent's insurance requirements, including, without limitation:
(i) Property and casualty insurance (including
coverage for flood and other water damage for any Unencumbered
Assets located within a 100-year flood plain) in the amount of
the replacement cost of the improvements at the Unencumbered
Assets;
(ii) Loss of rental income insurance in the amount
not less than one year's Gross Revenues from the Unencumbered
Assets; and
(iii) Comprehensive general liability insurance in
the amount of $1,000,000 per occurrence.
-41-
42
All insurance must be carried by companies with a Best Insurance
Reports (1992) Policyholder's and Financial Size Rating of "A-VII" or better.
(k) Prior Facility. The Lenders acknowledge that the Borrower
has properly terminated the Existing Credit Agreement effective as of
the Agreement Execution Date and shall immediately pay all outstanding
obligations thereunder with the proceeds of the initial Advance
hereunder. The Borrower has received letters from those Lenders under
the Existing Credit Agreement that are not parties to this Agreement
confirming their withdrawal from the Facility.
(l) Financial and Related Information. The following
information:
(i) A certificate, signed by an officer of the
Borrower, stating that on the Agreement Execution Date no
Default or Event of Default has occurred and is continuing and
that all representations and warranties of the Borrower
contained herein are true and correct as of the Agreement
Execution Date as and to the extent set forth herein;
(ii) The most recent financial statements of the
Borrower and General Partner and a certificate from a
Qualified Officer of the Borrower that no change in the
Borrower's financial condition that would have a Material
Adverse Effect has occurred since March 31, 2000;
(iii) Evidence of sufficient Unencumbered Assets
(which evidence may include pay-off letters (together with
evidence of payment or a direction of Borrower to use a
portion of the proceeds of the Advances to repay such
Indebtedness), mortgage releases and/or title policies) to
assist the Administrative Agent in determining the Borrower's
compliance with the covenants set forth in Article IX herein;
(iv) Written money transfer instructions, in
substantially the form of Exhibit G hereto, addressed to the
Administrative Agent and signed by a Qualified Officer,
together with such other related money transfer authorizations
as the Administrative Agent may have reasonably requested; and
(v) Operating statements for the Unencumbered
Assets and other evidence of income and expenses to assist the
Administrative Agent in determining Borrower's compliance with
the covenants set forth in Article IX herein.
(m) Other Evidence as any Lender May Require. Such other
evidence as any Lender may reasonably request to establish the
consummation of the transactions contemplated hereby, the taking of all
necessary actions in any proceedings in connection herewith and
compliance with the conditions set forth in this Agreement.
When all such conditions have been fulfilled (or, in the Lenders' sole
discretion, waived by Lenders), the Lenders shall confirm in writing to Borrower
that the initial Advance is then available to Borrower hereunder.
-42-
43
5.2 Conditions Precedent to Subsequent Advances. Advances after the
initial Advance shall be made from time to time as requested by Borrower, and
the obligation of each Lender to make any Advance (including Swingline Loans and
Competitive Bid Loans) and the obligation of the Issuing Bank to issue a
Facility Letter of Credit is subject to the following terms and conditions:
(a) prior to each such Advance no Default or Event of Default
shall have occurred and be continuing under this Agreement or any of
the Loan Documents and, if required by Administrative Agent, Borrower
shall deliver a certificate of Borrower to such effect; and
(b) The representations and warranties contained in Article VI
and VII are true and correct as of such borrowing date, Issuance Date,
or date of conversion and/or continuation as and to the extent set
forth therein, except to the extent any such representation or warranty
is stated to relate solely to an earlier date, in which case such
representation or warranty shall be true and correct on and as of such
earlier date.
Subject to the last grammatical paragraphs of Article VI and VII
hereof, each Borrowing Notice, Letter of Credit Request, and
Conversion/Continuation Notice shall constitute a representation and warranty by
the Borrower that the conditions contained in Sections 5.2(a) and (b) have been
satisfied.
Article VI.
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants that:
6.1 Existence. Borrower is a limited partnership duly organized and
existing under the laws of the State of Delaware, with its principal place of
business in the State of Illinois, and is duly qualified as a foreign limited
partnership, properly licensed (if required), in good standing and has all
requisite authority to conduct its business in each jurisdiction in which it
owns Properties and, except where the failure to be so qualified or to obtain
such authority would not have a Material Adverse Effect, in each other
jurisdiction in which its business is conducted. Each of its Subsidiaries is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all requisite authority to conduct its
business in each jurisdiction in which it owns Property, and except where the
failure to be so qualified or to obtain such authority would not have a Material
Adverse Effect, in each other jurisdiction in which it conducts business.
6.2 Corporate/Partnership Powers. The execution, delivery and
performance of the Loan Documents required to be delivered by Borrower hereunder
are within the partnership authority of such entity and the corporate powers of
the general partners of such entity, have been duly authorized by all requisite
action, and are not in conflict with the terms of any organizational instruments
of such entity, or any instrument or agreement to which Borrower or General
Partner is a party or by which Borrower, General Partner or any of their
respective assets may be bound or affected.
-43-
44
6.3 Power of Officers. The officers of the General Partner executing
the Loan Documents required to be delivered by such entities hereunder have been
duly elected or appointed and were fully authorized to execute the same at the
time each such agreement, certificate or instrument was executed.
6.4 Government and Other Approvals. No approval, consent, exemption or
other action by, or notice to or filing with, any governmental authority is
necessary in connection with the execution, delivery or performance of the Loan
Documents required hereunder.
6.5 Solvency.
(i) Immediately after the Agreement Execution Date and
immediately following the making of each Loan and after giving
effect to the application of the proceeds of such Loans, (a) the
fair value of the assets of the Borrower and its Subsidiaries on a
consolidated basis, at a fair valuation, will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the
Borrower and its Subsidiaries on a consolidated basis; (b) the
present fair saleable value of the Properties of the Borrower and
its Subsidiaries on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of the
Borrower and its Subsidiaries on a consolidated basis on their
debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and
matured; (c) the Borrower and its Subsidiaries on a consolidated
basis will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and
its Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the businesses in
which they are engaged as such businesses are now conducted and
are proposed to be conducted after the date hereof.
(ii) Borrower does not intend to, or to permit any of
its Subsidiaries to incur debts beyond its ability to pay such
debts as they mature, taking into account the timing of and
amounts of cash to be received by it or any such Subsidiary and
the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary.
6.6 Compliance With Laws. There is no judgment, decree or order or any
law, rule or regulation of any court or governmental authority binding on
Borrower or any of its Subsidiaries which would be contravened by the execution,
delivery or performance of the Loan Documents required hereunder.
6.7 Enforceability of Agreement. This Agreement is the legal, valid
and binding agreement of the Borrower, and the Notes when executed and delivered
will be the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms, and the Loan
Documents required hereunder, when executed and delivered, will be similarly
legal, valid, binding and enforceable except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting the rights of creditors generally.
-44-
45
6.8 Title to Property. To the best of Borrower's knowledge after due
inquiry, Borrower or its Subsidiaries has good and marketable title to the
Properties and assets reflected in the financial statements as owned by it or
any such Subsidiary free and clear of Liens except for the Permitted Liens. The
execution, delivery or performance of the Loan Documents required to be
delivered by the Borrower hereunder will not result in the creation of any Lien
on the Properties. No consent to the transactions contemplated hereunder is
required from any ground lessor or mortgagee or beneficiary under a deed of
trust or any other party except as has been delivered to the Lenders.
6.9 Litigation. There are no suits, arbitrations, claims, disputes or
other proceedings (including, without limitation, any civil, criminal,
administrative or environmental proceedings), pending or, to the best of
Borrower's knowledge, threatened against or affecting the Borrower or any of the
Properties, the adverse determination of which individually or in the aggregate
would have a Material Adverse Effect on the Borrower and/or would cause a
Material Adverse Financial Change of Borrower or materially impair the
Borrower's ability to perform its obligations hereunder or under any instrument
or agreement required hereunder, except as disclosed on Schedule 6.9 hereto, or
otherwise disclosed to Lenders in accordance with the terms hereof.
6.10 Events of Default. No Default or Event of Default has occurred
and is continuing or would result from the incurring of obligations by the
Borrower under any of the Loan Documents or any other document to which Borrower
is a party.
6.11 Investment Company Act of 1940. Borrower is not and will by such
acts as may be necessary continue not to be, an investment company within the
meaning of the Investment Company Act of 1940.
6.12 Public Utility Holding Company Act. The Borrower is not a
"holding company" or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," within the definitions of the Public Utility Holding Company Act of
1935, as amended.
6.13 Regulation U. The proceeds of the Advances will not be used,
directly or indirectly, in a manner which would cause the Facility to be treated
as a "Purpose Credit."
6.14 No Material Adverse Financial Change. To the best knowledge of
Borrower, there has been no Material Adverse Financial Change in the condition
of Borrower since the date of the financial and/or operating statements most
recently submitted to the Lenders.
6.15 Financial Information. All financial statements furnished to the
Lenders by or at the direction of the Borrower and all other financial
information and data furnished by the Borrower to the Lenders are complete and
correct in all material respects as of the date thereof, and such financial
statements have been prepared in accordance with GAAP and fairly present the
consolidated financial condition and results of operations of the Borrower as of
such date. The Borrower has no contingent obligations, liabilities for taxes or
other outstanding financial obligations which are material in the aggregate,
except as disclosed in such statements, information and data.
-45-
46
6.16 Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower to the Lenders for
purposes of or in connection with this Agreement and the other Loan Documents
and the transactions contemplated therein is, and all other such factual
information hereafter furnished by or on behalf of the Borrower to the Lenders
will be, true and accurate (taken as a whole) in all material respects on the
date as of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information (taken as
a whole) not misleading at such time.
6.17 ERISA. (i) Borrower is not an entity deemed to hold "plan assets"
within the meaning of ERISA or any regulations promulgated thereunder of an
employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to
Title I of ERISA or any plan within the meaning of Section 4975 of the Code, and
(ii) the execution of this Agreement and the transactions contemplated hereunder
do not give rise to a prohibited transaction within the meaning of Section 406
of ERISA or Section 4975 of the Code.
6.18 Taxes. All required tax returns have been filed by Borrower with
the appropriate authorities except to the extent that extensions of time to file
have been requested, granted and have not expired or except to the extent such
taxes are being contested in good faith and for which adequate reserves, in
accordance with GAAP, are being maintained.
6.19 Environmental Matters. Except as disclosed in Schedule 6.19, each
of the following representations and warranties is true and correct except to
the extent that the facts and circumstances giving rise to any such failure to
be so true and correct, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect:
(i) To the knowledge of the Borrower, the Properties of
Borrower, its Subsidiaries, and Investment Affiliates do not
contain any Materials of Environmental Concern in amounts or
concentrations which constitute a violation of, or could
reasonably give rise to liability under, Environmental Laws.
(ii) Borrower has not received any written notice
alleging that any or all of the Properties of Borrower and its
Subsidiaries and Investment Affiliates and all operations at the
Properties are not currently in compliance with all applicable
Environmental Laws. Further, Borrower has not received any
written notice alleging the current existence of any
contamination at or under such Properties in amounts or
concentrations which constitute a violation of any Environmental
Law, or any violation of any Environmental Law with respect to
such Properties for which Borrower, its Subsidiaries or
Investment Affiliates is or could be liable.
(iii) Neither Borrower nor any of its Subsidiaries or
Investment Affiliates has received any written notice of current
non-compliance, liability or potential liability regarding
Environmental Laws with regard to any of the Properties, nor does
it have knowledge that any such notice will be received or is
being threatened.
-46-
47
(iv) To the knowledge of Borrower during the ownership of
the Properties by any or all of Borrower, its Subsidiaries and
Investment Affiliates, Materials of Environmental Concern have
not been transported or disposed of from the Properties of
Borrower and its Subsidiaries and Investment Affiliates in
violation of, or in a manner or to a location which could
reasonably give rise to liability of Borrower, any Subsidiary, or
any Investment Affiliate under, Environmental Laws, nor during
the ownership of the Properties by any or all of Borrower, its
Subsidiaries and Investment Affiliates have any Materials of
Environmental Concern been generated, treated, stored or disposed
of at, on or under any of such Properties in violation of, or in
a manner that could give rise to liability of Borrower, any
Subsidiary or any Investment Affiliate under, any applicable
Environmental Laws.
(v) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of
Borrower, threatened, under any Environmental Law to which
Borrower, any of its Subsidiaries, or any Investment Affiliate,
is named as a party with respect to the Properties of such
entity, nor are there any consent decrees or other decrees,
consent orders, administrative order or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to such Properties for which
Borrower, its Subsidiaries, or any Investment Affiliate is or
could be liable.
(vi) To the knowledge of Borrower during the ownership of
the Properties by any or all of Borrower, its Subsidiaries and
Investment Affiliates, there has been no release or threat of
release of Materials of Environmental Concern at or from the
Properties of Borrower and its Subsidiaries and Investment
Affiliates, or arising from or related to the operations of such
entity in connection with the Properties in violation of or in
amounts or in a manner that could give rise to liability under
Environmental Laws.
6.20 Insurance. Borrower has obtained the insurance which Borrower is
required to furnish to Lenders under Section 5.1(j) hereof.
6.21 No Brokers. Borrower has dealt with no brokers in connection with
this Facility, and no brokerage fees or commissions are payable by or to any
Person in connection with this Agreement or the Advances. Lenders shall not be
responsible for the payment of any fees or commissions to any broker and
Borrower shall indemnify, defend and hold Lenders harmless from and against any
claims, liabilities, obligations, damages, costs and expenses (including
reasonable attorneys' fees and disbursements) made against or incurred by
Lenders as a result of claims made or actions instituted by any broker or Person
claiming by, through or under Borrower in connection with the Facility.
6.22 No Violation of Usury Laws. No aspect of any of the transactions
contemplated herein violate or will violate any usury laws or laws regarding the
validity of agreements to pay interest in effect on the date hereof.
-47-
48
6.23 Not a Foreign Person. Borrower is not a "foreign person" within
the meaning of Section 1445 or 7701 of the Internal Revenue Code.
6.24 No Trade Name. Except for the name "First Industrial," and except
as otherwise set forth on Schedule 6.24 attached hereto, Borrower does not use
any trade name and has not and does not do business under any name other than
their actual names set forth herein. The principal place of business of Borrower
is as stated in the recitals hereto.
6.25 Subsidiaries. Schedule 6.25 hereto contains an accurate list of
all of the presently existing Subsidiaries of Borrower, setting forth their
respective jurisdictions of formation, the percentage of their respective
Capital Stock owned by it or its Subsidiaries and the Properties owned by them.
All of the issued and outstanding shares of Capital Stock of such Subsidiaries
have been duly authorized and issued and are fully paid and non-assessable.
6.26 Unencumbered Assets. Schedule 6.26 hereto contains a complete and
accurate description of Unencumbered Assets as of the March 31, 2000 and as
supplemented from time to time including the entity that owns each Unencumbered
Asset. With respect to each Project identified from time to time as an
Unencumbered Asset, Borrower hereby represents and warrants as follows except to
the extent disclosed in writing to the Lenders and approved by the Required
Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Asset is
located in an area identified by the Secretary of Housing and Urban
Development or any successor thereto as an area having special flood
hazards pursuant to the National Flood Insurance Act of 1968 or the
Flood Disaster Protection Act of 1973, as amended, or any successor
law, or, if located within any such area, Borrower has obtained and
will maintain the insurance prescribed in Section 5.1(j) hereof.
(b) To the Borrower's knowledge, the Unencumbered Asset and the
present use and occupancy thereof are in material compliance with all
applicable zoning ordinances (without reliance upon adjoining or other
properties), building codes, land use and Environmental Laws, and other
similar laws ("Applicable Laws").
(c) The Unencumbered Asset is served by all utilities required
for the current or contemplated use thereof. All utility service is
provided by public utilities and the Unencumbered Asset has accepted or
is equipped to accept such utility service.
(d) All public roads and streets necessary for service of and
access to the Unencumbered Asset for the current or contemplated use
thereof have been completed, are serviceable and all-weather and are
physically and legally open for use by the public.
(e) The Unencumbered Asset is served by public water and sewer
systems or, if the Unencumbered Asset is not serviced by a public water
and sewer system, such alternate systems are adequate and meet, in all
material respects, all requirements and regulations of, and otherwise
complies in all material respects with, all Applicable Laws with
respect to such alternate systems.
-48-
49
(f) Borrower is not aware of any latent or patent structural or
other significant deficiency of the Unencumbered Asset. The
Unencumbered Asset is free of damage and waste that would materially
and adversely affect the value of the Unencumbered Asset, is in good
repair and there is no deferred maintenance other than ordinary wear
and tear. The Unencumbered Asset is free from damage caused by fire or
other casualty. There is no pending or, to the actual knowledge of
Borrower threatened condemnation proceedings affecting the Unencumbered
Asset, or any material part thereof.
(g) To Borrower's knowledge, all liquid and solid waste
disposal, septic and sewer systems located on the Unencumbered Asset
are in a good and safe condition and repair and to Borrower's
knowledge, in material compliance with all Applicable Laws with respect
to such systems.
(h) All improvements on the Unencumbered Asset lie within the
boundaries and building restrictions of the legal description of record
of the Unencumbered Asset, no such improvements encroach upon easements
benefiting the Unencumbered Asset other than encroachments that do not
materially adversely affect the use or occupancy of the Unencumbered
Asset and no improvements on adjoining properties encroach upon the
Unencumbered Asset or easements benefiting the Unencumbered Asset other
than encroachments that do not materially adversely affect the use or
occupancy of the Unencumbered Asset. All amenities, access routes or
other items that materially benefit the Unencumbered Asset are under
direct control of Borrower, constitute permanent easements that benefit
all or part of the Unencumbered Asset or are public property, and the
Unencumbered Asset, by virtue of such easements or otherwise, is
contiguous to a physically open, dedicated all weather public street,
and has the necessary permits for ingress and egress.
(i) There are no delinquent taxes, ground rents, water charges, sewer
rents, assessments, insurance premiums, leasehold payments, or other outstanding
charges affecting the Unencumbered Asset except to the extent such items are
being contested in good faith and as to which adequate reserves have been
provided.
A breach of any of the representations and warranties contained in this Section
6.26 with respect to a Project shall disqualify such Project from being an
Unencumbered Asset for so long as such breach continues (unless otherwise
approved by the Required Lenders) but shall not constitute a Default (unless the
elimination of such Property as an Unencumbered Asset results in a Default under
one of the other provisions of this Agreement).
Borrower agrees that all of its representations and warranties set
forth in Article VI of this Agreement and elsewhere in this Agreement are true
on the Agreement Execution Date, and will be true on each Effective Date in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Required Lenders), and will be true in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Required Lenders) upon each request for
disbursement of an Advance, provided that the Borrower shall only be obligated
to update any Schedules referred to in this Article VI on a quarterly basis,
along with the quarterly financial statements required under Section 8.2(i),
unless any change otherwise required to be disclosed could reasonably be
expected to have a
-49-
50
Material Adverse Effect. Each request for disbursement hereunder shall
constitute a reaffirmation of such representations and warranties as deemed
modified in accordance with the disclosures made and approved, as aforesaid, as
of the date of such request and disbursement.
Article VII.
ADDITIONAL REPRESENTATIONS AND WARRANTIES
The General Partner hereby represents and warrants that:
7.1 Existence. The General Partner is a corporation duly organized and
existing under the laws of the State of Maryland, with its principal place of
business in the State of Illinois, is duly qualified as a foreign corporation
and properly licensed (if required) and in good standing in each jurisdiction
where the failure to qualify or be licensed (if required) would constitute a
Material Adverse Financial Change with respect to the General Partner or have a
Material Adverse Effect on the business or properties of the General Partner.
7.2 Corporate Powers. The execution, delivery and performance of the
Loan Documents required to be delivered by the General Partner hereunder are
within the corporate powers of the General Partner, have been duly authorized by
all requisite corporate action, and are not in conflict with the terms of any
organizational instruments of the General Partner, or any instrument or
agreement to which the General Partner is a party or by which General Partner or
any of its assets is bound or affected.
7.3 Power of Officers. The officers of the General Partner executing
the Loan Documents required to be delivered by the General Partner hereunder
have been duly elected or appointed and were fully authorized to execute the
same at the time each such agreement, certificate or instrument was executed.
7.4 Government and Other Approvals. No approval, consent, exemption or
other action by, or notice to or filing with, any governmental authority is
necessary in connection with the execution, delivery or performance of the Loan
Documents required hereunder.
7.5 Compliance With Laws. There is no judgment, decree or order or any
law, rule or regulation of any court or governmental authority binding on the
General Partner which would be contravened by the execution, delivery or
performance of the Loan Documents required hereunder.
7.6 Enforceability of Agreement. This Agreement is the legal, valid
and binding agreement of the General Partner, as the general partner of
Borrower, enforceable against the General Partner in accordance with its
respective terms, and the Loan Documents required hereunder, when executed and
delivered, will be similarly legal, valid, binding and enforceable except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the rights of
creditors generally.
7.7 Liens; Consents. The execution, delivery or performance of the
Loan Documents required to be delivered by the General Partner hereunder will
not result in the creation of any Lien on the Properties other than in favor of
the Lenders. No consent to the transactions
-50-
51
hereunder is required from any ground lessor or mortgagee or beneficiary under a
deed of trust or any other party except as has been delivered to the Lenders.
7.8 Litigation. There are no suits, arbitrations, claims, disputes or
other proceedings (including, without limitation, any civil, criminal,
administrative or environmental proceedings), pending or, to the best of General
Partner's knowledge, threatened against or affecting the General Partner or any
of the Properties, the adverse determination of which individually or in the
aggregate would have a Material Adverse Effect on the General Partner and/or
would cause a Material Adverse Financial Change with respect to the General
Partner or materially impair the General Partner's ability to perform its
obligations hereunder or under any instrument or agreement required hereunder,
except as disclosed on Schedule 7.8 hereto, or otherwise disclosed to Lenders in
accordance with the terms hereof.
7.9 Events of Default. No Default or Event of Default has occurred
and is continuing or would result from the incurring of obligations by the
General Partner under any of the Loan Documents or any other document to which
General Partner is a party.
7.10 Investment Company Act of 1940. The General Partner is not, and
will by such acts as may be necessary continue not to be, an investment company
within the meaning of the Investment Company Act of 1940.
7.11 Public Utility Holding Company Act. The General Partner is not a
"holding company" or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," within the definitions of the Public Utility Holding Company Act of
1935, as amended.
7.12 No Material Adverse Financial Change. There has been no Material
Adverse Financial Change in the condition of the General Partner since the last
date on which the financial and/or operating statements were submitted to the
Lenders.
7.13 Financial Information. All financial statements furnished to the
Lenders by or on behalf of the General Partner and all other financial
information and data furnished by or on behalf of the General Partner to the
Lenders are complete and correct in all material respects as of the date
thereof, and such financial statements have been prepared in accordance with
GAAP and fairly present the consolidated financial condition and results of
operations of the General Partner as of such date. The General Partner has no
contingent obligations, liabilities for taxes or other outstanding financial
obligations which are material in the aggregate, except as disclosed in such
statements, information and data.
7.14 Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the General Partner to the
Lenders for purposes of or in connection with this Agreement and the other Loan
Documents and the transactions contemplated therein is, and all other such
factual information hereafter furnished by or on behalf of the General Partner
to the Lenders will be, true and accurate in all material respects (taken as a
whole) on the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time.
-51-
52
7.15 ERISA. (i) General Partner is not an entity deemed to hold "plan
assets" within the meaning of ERISA or any regulations promulgated thereunder of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan within the meaning of Section 4975 of the Code,
and (ii) the execution of this Agreement and the transactions contemplated
hereunder do not give rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code.
7.16 Taxes. All required tax returns have been filed by the General
Partner with the appropriate authorities except to the extent that extensions of
time to file have been requested, granted and have not expired or except to the
extent such taxes are being contested in good faith and for which adequate
reserves, in accordance with GAAP, are being maintained.
7.17 No Brokers. General Partner has dealt with no brokers in
connection with this Facility, and no brokerage fees or commissions are payable
by or to any Person in connection with this Agreement or the Advances. Lender
shall not be responsible for the payment of any fees or commissions to any
broker and General Partner shall indemnify, defend and hold Lender harmless from
and against any claims, liabilities, obligations, damages, costs and expenses
(including reasonable attorneys' fees and disbursements) made against or
incurred by Lender as a result of claims made or actions instituted by any
broker or Person claiming by, through or under the General Partner in connection
with the Facility.
7.18 Subsidiaries. Schedule 7.18 hereto contains an accurate list of
all of the presently existing Subsidiaries of General Partner, setting forth
their respective jurisdictions of formation, the percentage of their respective
Capital Stock owned by it or its Subsidiaries and the Properties owned by them.
All of the issued and outstanding shares of Capital Stock of such Subsidiaries
have been duly authorized and issued and are fully paid and non-assessable.
7.19 Status. General Partner is a corporation listed and in good
standing on the New York Stock Exchange ("NYSE") and is currently qualified as a
real estate investment trust under the Code.
General Partner agrees that all of its representations and warranties
set forth in Article VII of this Agreement and elsewhere in this Agreement are
true on the Agreement Execution Date, and will be true on each Effective Date in
all material respects (except with respect to matters which have been disclosed
in writing to and approved by the Required Lenders), and will be true in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Required Lenders) upon each request for
disbursement of an Advance, provided that the General Partner shall only be
obligated to update any Schedules referred to in this Article VII on a quarterly
basis, along with the quarterly financial statements required under Section
8.2(i), unless any change otherwise required to be disclosed could reasonably be
expected to have a Material Adverse Effect. Each request for disbursement
hereunder shall constitute a reaffirmation of such representations and
warranties as deemed modified in accordance with the disclosures made and
approved, as aforesaid, as of the date of such request and disbursement.
-52-
53
Article VIII.
AFFIRMATIVE COVENANTS
The Borrower (and the General Partner, if expressly included in
Sections contained in this Article) covenant and agree that so long as the
Commitment of any Lender shall remain available and until the full and final
payment of all Obligations incurred under the Loan Documents they will:
8.1 Notices. Promptly give written notice to Administrative Agent
(who will promptly send such notice to Lenders) of:
(a) all litigation or arbitration proceedings affecting the
Borrower, the General Partner or any Subsidiary where the amount
claimed is $5,000,000 or more;
(b) any Default or Event of Default, specifying the nature and
the period of existence thereof and what action has been taken or been
proposed to be taken with respect thereto;
(c) all claims filed against any property owned by the Borrower
or the General Partner which, if adversely determined, could have a
Material Adverse Effect on the ability of the Borrower or the General
Partner to meet any of their obligations under the Loan Documents;
(d) the occurrence of any other event which might have a
Material Adverse Effect or cause a Material Adverse Financial Change on
or with respect to the Borrower or the General Partner;
(e) any Reportable Event or any "prohibited transaction" (as
such term is defined in Section 4975 of the Code) in connection with
any Plan or any trust created thereunder, which may, singly or in the
aggregate materially impair the ability of the Borrower or the General
Partner to repay any of its obligations under the Loan Documents,
describing the nature of each such event and the action, if any, the
Borrower or the General Partner, as the case may be, proposes to take
with respect thereto;
(f) any notice from any federal, state, local or foreign
authority regarding any Hazardous Material, asbestos, or other
environmental condition, proceeding, order, claim or violation
affecting any of the Properties.
8.2 Financial Statements, Reports, Etc. The Borrower and the General
Partner each shall maintain, for itself and each Subsidiary, a system of
accounting established and administered in accordance with GAAP, and shall
furnish to the Lenders:
(i) quarterly financial statements (including a
balance sheet and income statement) and related reports in form
and substance satisfactory to the Lenders not later than 45 days
after the end of each of the first three fiscal quarters, and not
later than ninety (90) days after the end of each fiscal year,
all certified by Borrower's chief financial officer or chief
accounting officer,
-53-
54
including a statement of Funds From Operations for the General
Partner, calculation of the financial covenants described below,
a description of Unencumbered Assets, a listing of capital
expenditures (in the level of detail as currently disclosed in
Borrower's "Supplemental Information"), a report listing and
describing all newly acquired Properties, including their cash
flow, cost and secured or unsecured Indebtedness assumed in
connection with such acquisition, if any, summary Property
information for all Properties, including, without limitation,
their Property Operating Income, occupancy rates, square footage,
property type and date acquired or built, and such other
information as may be requested to evaluate the quarterly
compliance certificate delivered as provided below;
(ii) copies of all Form 10Ks, 10Qs, 8Ks, and any
other public information filed with the Securities Exchange
Commission by Borrower or the General Partner once a quarter
simultaneously with delivering the compliance certificate
described below, along with any other materials distributed to
the shareholders of the General Partner or the partners of the
Borrower from time to time, including a copy of the General
Partner's annual report. To the extent any of such reports
contains information required under the other subsections of this
Section 8.2, the information need not be furnished separately
under the other subsections;
(iii) not later than forty-five (45) days after the
end of the first three fiscal quarters, and not later than ninety
(90) days after the end of the fiscal year, a report certified by
the entity's chief financial officer or chief accounting officer,
containing Property Operating Income from individual properties
owned by the Borrower or a Wholly-Owned Subsidiary and included
as Unencumbered Assets.
(iv) Not later than forty-five (45) days after the
end of each of the first three fiscal quarters, and not later
than ninety (90) days after the end of the fiscal year, a
compliance certificate in substantially the form of Exhibit H
hereto signed by the Borrower's chief financial officer or chief
accounting officer confirming that Borrower is in compliance with
all of the covenants of the Loan Documents, showing the
calculations and computations necessary to determine compliance
with the financial covenants contained in this Agreement
(including such schedules and backup information as may be
necessary to demonstrate such compliance) and stating that to
such officer's best knowledge, there is no other Default or Event
of Default exists, or if any Default or Event of Default exists,
stating the nature and status thereof;
(v) As soon as possible and in any event within 10
Business Days after the Borrower knows that any Reportable Event
has occurred with respect to any Plan, a statement, signed by the
chief financial officer of Borrower, describing said Reportable
Event and within 20 days after such Reportable Event, a statement
signed by such chief financial officer describing the action
which Borrower proposes to take with respect thereto; and (b)
within 10 Business Days of receipt, any notice from the Internal
Revenue Service, PBGC or Department of
-54-
55
Labor with respect to a Plan regarding any excise tax, proposed
termination of a Plan, prohibited transaction or fiduciary
violation under ERISA or the Code which could result in any
liability to Borrower or any member of the Controlled Group in
excess of $100,000; and (c) within 10 Business Days of filing,
any Form 5500 filed by Borrower with respect to a Plan, or any
member of the Controlled Group which includes a qualified
accountant's opinion.
(vi) As soon as possible and in any event within 30
days after receipt by the Borrower, a copy of (a) any notice or
claim to the effect that the Borrower or any of its Subsidiaries
is or may be liable to any Person as a result of the release by
such entity, or any of its Subsidiaries, or any other Person of
any toxic or hazardous waste or substance into the environment,
and (b) any notice alleging any violation of any federal, state
or local environmental, health or safety law or regulation by the
Borrower or any of its Subsidiaries or Investment Affiliates,
which, in either case, could be reasonably likely to have a
Material Adverse Effect;
(vii) Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial statements,
reports and proxy statements so furnished;
(viii) Promptly upon the distribution thereof to the
press or the public, copies of all press releases;
(ix) As soon as possible, and in any event within
10 days after the Borrower knows of any fire or other casualty or
any pending or threatened condemnation or eminent domain
proceeding with respect to all or any material portion of any
Unencumbered Asset, a statement signed by the Chief Financial
Officer of Borrower, describing such fire, casualty or
condemnation and the action Borrower intends to take with respect
thereto; and
(x) Such other information (including, without
limitation, non-financial information) as the Administrative
Agent or any Lender may from time to time reasonably request.
8.3 Existence and Conduct of Operations. Except as permitted herein,
maintain and preserve its existence and all rights, privileges and franchises
now enjoyed and necessary for the operation of its business, including remaining
in good standing in each jurisdiction in which business is currently operated.
The Borrower and the General Partner shall carry on and conduct their respective
businesses in substantially the same manner and in substantially the same fields
of enterprise as presently conducted. The Borrower will do, and will cause each
of its Subsidiaries to do, all things necessary to remain duly incorporated
and/or duly qualified, validly existing and in good standing as a real estate
investment trust, corporation, general partnership, limited liability company or
limited partnership, as the case may be, in its jurisdiction of
incorporation/formation. The Borrower will maintain all requisite authority to
conduct its business in each jurisdiction in which the Properties are located
and, except where the failure to be so qualified would not have a Material
Adverse Effect, in each jurisdiction required to carry
-55-
56
on and conduct its businesses in substantially the same manner as it is
presently conducted, and, specifically, neither the Borrower nor its
Subsidiaries will undertake any business other than the acquisition,
development, ownership, management, operation and leasing of industrial
properties and ancillary businesses specifically related thereto, except that
the Borrower and its Subsidiaries and Investment Affiliates may invest in other
assets subject to the certain limitations contained herein with respect to the
following specified categories of assets: (i) Unimproved Land; (ii) other
property holdings (excluding cash, Cash Equivalents, non-industrial Properties
and Indebtedness of any Subsidiary to the Borrower); (iii) stock holdings other
than in Subsidiaries; (iv) mortgages; and (v) joint ventures and partnerships.
The total investment in any one of categories (i), (ii), (iii), (iv) or (v)
shall not exceed 10% of Implied Capitalization Value and the total investment in
all the foregoing investment categories in the aggregate shall be less than or
equal to twenty percent (20%) of Market Value Net Worth. In addition to the
foregoing restrictions, investments in Unimproved Land which is not adjacent to
existing improvements and not under active planning for near term development as
evidenced to the reasonable satisfaction of Administrative Agent shall not
exceed in the aggregate 5% of Implied Capitalization Value, and no single
industrial property shall exceed 5% of Implied Capitalization Value. For the
purposes of this Section 8.3, all investments shall be valued in accordance with
GAAP.
8.4 Maintenance of Properties. Maintain, preserve, protect and keep
the Properties in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements, normal wear and tear
excepted.
8.5 Insurance. Provide a certificate of insurance from all insurance
carriers who maintain policies with respect to the Properties within thirty (30)
days after the end of each fiscal year, evidencing that the insurance required
to be furnished to Lenders pursuant to Section 5.1(j) hereof is in full force
and effect. Borrower shall timely pay, or cause to be paid, all premiums on all
insurance policies required under this Agreement from time to time. Borrower
shall promptly notify its insurance carrier or agent therefor (with a copy of
such notification being provided simultaneously to Administrative Agent) if
there is any occurrence which, under the terms of any insurance policy then in
effect with respect to the Properties, requires such notification.
8.6 Payment of Obligations. Pay all taxes, assessments, governmental
charges and other obligations when due, except such as may be contested in good
faith or as to which a bona fide dispute may exist, and for which adequate
reserves have been provided in accordance with sound accounting principles used
by Borrower on the date hereof.
8.7 Compliance with Laws. Comply in all material respects with all
applicable laws, rules, regulations, orders and directions of any governmental
authority having jurisdiction over Borrower, General Partner, or any of their
respective businesses.
8.8 Adequate Books. Maintain adequate books, accounts and records in
order to provide financial statements in accordance with GAAP and, if requested
by any Lender, permit employees or representatives of such Lender at any
reasonable time and upon reasonable notice to inspect and audit the properties
of Borrower and of the Consolidated Operating Partnership, and to examine or
audit the inventory, books, accounts and records of each of them and make copies
and memoranda thereof.
-56-
57
8.9 ERISA. Comply in all material respects with all requirements of
ERISA applicable to it with respect to each Plan.
8.10 Maintenance of Status. General Partner shall at all times (i)
remain as a corporation listed and in good standing on the New York Stock
Exchange (NYSE), and (ii) take all steps maintain General Partner's status as a
real estate investment trust in compliance with all applicable provisions of the
Code (unless otherwise consented to by the Required Lenders).
8.11 Use of Proceeds. Use the proceeds of the Facility for the general
business purposes of the Borrower, including without limitation working capital
needs, closing costs, and interim funding for property acquisitions and
construction of new industrial properties, and/or payment of other debts and
obligations of Borrower.
8.12 Pre-Acquisition Environmental Investigations. Cause to be
prepared prior to the acquisition of each project that it intends to acquire an
environmental report pursuant to a standard scope of work attached as Exhibit I
hereto and made a part hereof.
8.13 Distributions. Provided there is no Monetary Default then
existing and provided there is not an Event of Default relating to a breach of
the financial covenants contained in Section 9.10 below, the General Partner may
make distributions to its shareholders provided that the aggregate amount of
distributions in any period of four consecutive fiscal quarters is not in excess
of 95% of its Funds From Operations for such period. Notwithstanding the
foregoing, unless at the time of distribution there is a Monetary Default, the
General Partner shall be permitted at all times to distribute whatever amount is
necessary to maintain its tax status as a real estate investment trust.
Article IX.
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as the Commitment shall
remain available and until full and final payment of all obligations incurred
under the Loan Documents, without the prior written consent of either all of the
Lenders pursuant to Section 14.13(a)(vii) or the consent of the Required Lenders
in all other cases, it will not, and the General Partner will not and, in the
case of Sections 9.5 and 9.11, Borrower's Subsidiaries will not:
9.1 Change in Business. Engage in any business activities or
operations other than (i) the ownership and operation of the Properties, or (ii)
other business functions and transactions related to the financing, ownership,
acquisition, development and/or management of bulk warehouse and light
industrial properties, or without obtaining the prior written consent of the
Required Lenders materially change the nature of the use of the Properties.
9.2 Change of Management of Properties. Change the management of the
Properties, except that any Affiliate of Borrower or the General Partner shall
be permitted to manage any of the Properties.
9.3 Change of Borrower Ownership or Financing Partnership Ownership.
Allow (i) the General Partner to own less than fifty-one percent (51%) of the
partnership interests in
-57-
58
Borrower or 100% of the stock in FIMC and in FISC, (ii) the Borrower to be
controlled by a Person other than the General Partner, (iii) any pledge of,
other encumbrance on, or conversion to limited partnership interests of, any of
the general partnership interests in the Borrower, or (iv) any pledge,
hypothecation, encumbrance, transfer or other change in the ownership or the
partnership interests in the Financing Partnership or Mortgage Partnership
(except for the pledge of such partnership interests to the REMIC Lender).
9.4 Use of Proceeds. Apply or permit to be applied any proceeds of
any Advance directly or indirectly, to the funding of any purchase of, or offer
for, any share of capital stock of any publicly held corporation unless the
board of directors of such corporation has consented to such offer prior to any
public announcements relating thereto and the Lenders have consented to such use
of the proceeds of the Facility.
9.5 Transfers of Unencumbered Assets. Transfer or otherwise dispose
of (other than the creation or incurrence of Liens permitted under Section 9.6)
an Unencumbered Asset without the prior written consent of the Required Lenders
if the Value of such Unencumbered Asset, together with the Value of any other
Unencumbered Assets which have been transferred or disposed of during the
then-current fiscal quarter and the immediately preceding three (3) full fiscal
quarters, would exceed twenty percent (20%) of the sum of the Value of
Unencumbered Assets at the beginning of such period plus the increase therein as
a result of all Projects added to Unencumbered Assets during such period,
provided that such percentage shall be increased to twenty-five percent (25%)
for such period if the aggregate Value of Unencumbered Assets in the Exit
Markets which are sold during such period exceeds five percent (5%) of such sum.
9.6 Liens. Create, incur, or suffer to exist (or permit any of its
Subsidiaries to create, incur, or suffer to exist) any Lien in, of or on the
Property of any member of the Consolidated Operating Partnership other than:
(i) Liens for taxes, assessments or governmental charges
or levies on their Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings and
for which adequate reserves shall have been set aside on their
books;
(ii) Liens which arise by operation of law, such as
carriers', warehousemen's, landlords', materialmen and mechanics'
liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 30
days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves shall
have been set aside on its books;
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits, or
similar legislation;
(iv) Utility easements, building restrictions, zoning
restrictions, easements and such other encumbrances or charges
against real property as are of
-58-
59
a nature generally existing with respect to properties of a
similar character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in
the business of the Borrower or its Subsidiaries;
(v) Liens of any Subsidiary in favor of the Borrower or
General Partner; and
(vi) Liens arising in connection with any Indebtedness
permitted hereunder to the extent such Liens will not result in a
violation of any of the provisions of this Agreement.
Liens permitted pursuant to this Section 9.6 shall be deemed to be "Permitted
Liens".
9.7 Regulation U. Use any of the proceeds of the Facility in a manner
which would cause the Facility to be treated as a "Purpose Credit."
9.8 Indebtedness and Cash Flow Covenants. Permit or suffer:
(a) as of March 31, 2000 or the last day of any fiscal quarter
ending thereafter, the ratio of (A) the sum of (1) EBITDA of the
Consolidated Operating Partnership plus (2) interest income (other than
any interest income from assets being used to support Defeased REMIC
Debt) to (B) the sum of (1) Debt Service plus, without duplication, (2)
all payments on account of preferred stock or preferred partnership
units of any member of the Consolidated Operating Partnership for such
quarter plus (3) all ground lease payments due from any member of the
Consolidated Operating Partnership to the extent not deducted as an
expense in calculating EBITDA of the Consolidated Operating
Partnership, to be less than 1.75 to 1.0, based on annualizing the
results of such fiscal quarter;
(b) as of any day, Consolidated Total Indebtedness to exceed 55%
of Implied Capitalization Value of the Consolidated Operating
Partnership;
(c) as of any day, Indebtedness which does not bear interest at a
fixed rate or is not subject to interest rate protection products
reasonably approved by the Administrative Agent to exceed, in the
aggregate, twenty percent (20%) of the Implied Capitalization Value of
the Consolidated Operating Partnership.
(d) as of any day, the ratio of Value of Unencumbered Assets to
outstanding Consolidated Senior Unsecured Debt to be less than 1.75;
(e) as of March 31, 2000 or the last day of any fiscal quarter
ending thereafter, the ratio obtained by dividing (a) Property
Operating Income from Unencumbered Assets qualifying for inclusion in
the calculation of Value of Unencumbered Assets for such quarter by (b)
Debt Service on all Consolidated Senior Unsecured Debt for such quarter
to be less than 1.75 to 1;
(f) as of any day, the sum of (1) Consolidated Secured Debt plus
(2) Senior Preferred Stock of the General Partner to exceed 35% of
Implied Capitalization Value of
-59-
60
the Consolidated Operating Partnership. Senior Preferred Stock of the
General Partner will be dropped from this ratio when the PS Guaranty is
eliminated, as evidenced by the Administrative Agent's receipt of
satisfactory evidence thereof;
(g) as of March 31, 2000 or the last day of any fiscal quarter
ending thereafter, Market Value Net Worth of the Consolidated Operating
Partnership to be less than the sum of (i) $1,400,000,000 plus (ii)
seventy-five percent (75%) of the aggregate proceeds received (net of
customary related fees and expenses) in connection with any equity
offering (including any issuance of shares in the General Partner or
units in the Borrower) after the Agreement Execution Date.
To the extent the Consolidated Operating Partnership has Defeased REMIC Debt,
both the underlying debt and interest payable thereon and the financial assets
used to defease such debt and interest earned thereon shall be excluded from
calculations of the foregoing financial covenants.
9.9 Mergers and Dispositions. Enter into any merger, consolidation,
reorganization or liquidation or transfer or otherwise dispose of all or a
substantial portion of its properties, except for: such transactions that occur
between wholly-owned Subsidiaries; transactions where Borrower and the General
Partner are the surviving entities and there is no change in business conducted
or loss of an investment grade credit rating, and no Default or Event of Default
under the Loan Documents results from such transaction; or as otherwise approved
in advance by the Lenders. Borrower will notify the Administrative Agent (who
will promptly notify Lenders) of any acquisitions, dispositions, mergers or
asset purchases involving assets valued in excess of 10% of the Consolidated
Operating Partnership's then-current Market Value Net Worth and certify
compliance with covenants after giving effect to such proposed acquisition,
disposition, merger, or asset purchase regardless of whether any consent is
required.
9.10 Negative Pledge. Borrower agrees that throughout the term of this
Facility, no "negative pledge" on any Project then included in Unencumbered
Assets restricting Borrower's (or wholly-owned Subsidiary's) right to sell or
encumber such Project shall be given to any other lender or creditor or, if such
a "negative pledge" is given, the Project affected shall be immediately excluded
from Unencumbered Assets.
9.11 Maximum Revenue from Single Tenant. Permit the rent revenue
(exclusive of tenant reimbursements) received from a single tenant during any
quarter (as annualized), to exceed 7.5% of the Consolidated Operating
Partnership's total rent revenue (as annualized) as of the last day of such
quarter, except where the Consolidated Operating Partnership's noncompliance
arises from a merger of tenants or other causes outside of the Consolidated
Operating Partnership's control.
Article X.
DEFAULTS
The occurrence of any one or more of the following events shall
constitute an Event of Default:
-60-
61
10.1 Nonpayment of Principal. The Borrower fails to pay any principal
portion of the Obligations when due, whether on the Maturity Date or otherwise.
10.2 Certain Covenants. The Borrower, General Partner and/or
Consolidated Operating Partnership, as the case may be, is not in compliance
with any one or more of Sections 8.10, 8.13, 9.3, 9.4, 9.5, 9.6, 9.8, 9.9, 9.10
or 9.11 hereof.
10.3 Nonpayment of Interest and Other Obligations. The Borrower fails
to pay any interest or other portion of the Obligations, other than payments of
principal, and such failure continues for a period of five (5) days after the
date such payment is due.
10.4 Cross Default. Any monetary default occurs (after giving effect
to any applicable cure period) under any other Indebtedness (which includes
liability under Guaranties) of Borrower or the General Partner, singly or in the
aggregate, in excess of Ten Million Dollars ($10,000,000), other than (i)
Indebtedness arising from the purchase of personal property or the provision of
services, the amount of which is being contested by Borrower or (ii)
Indebtedness (other than the Second REMIC Loan which is the subject of Section
10.13 below) which is "non-recourse", i.e., which is not recoverable by the
creditor thereof from the general assets of the Borrower, the General Partner or
any of their Affiliates, but is limited to the proceeds of certain real estate,
improvements and related personal property.
10.5 Loan Documents. Any Loan Document is not in full force and effect
or a default has occurred and is continuing thereunder after giving effect to
any cure or grace period in any such document.
10.6 Representation or Warranty. At any time or times hereafter any
representation or warranty set forth in Articles VI or VII of this Agreement or
in any other Loan Document or in any statement, report or certificate now or
hereafter made by the Borrower or the General Partner to the Lenders or the
Administrative Agent is not true and correct in any material respect.
10.7 Covenants, Agreements and Other Conditions. The Borrower or the
General Partner fails to perform or observe any of the other covenants,
agreements and conditions contained in Articles VIII and IX (except for Sections
8.10, 8.13, 9.3, 9.4, 9.5, 9.6, 9.8, 9.9, 9.10 or 9.11 hereof) and elsewhere in
this Agreement or any of the other Loan Documents in accordance with the terms
hereof or thereof, not specifically referred to herein, and such Default
continues unremedied for a period of thirty (30) days after written notice from
Administrative Agent, provided, however, that if such Default is susceptible of
cure but cannot by the use of reasonable efforts be cured within such thirty
(30) day period, such Default shall not constitute an Event of Default under
this Section 10.7 so long as (i) the Borrower or the General Partner, as the
case may be, has commenced a cure within such thirty-day period and (ii)
thereafter, Borrower or General Partner, as the case may be, is proceeding to
cure such default continuously and diligently and in a manner reasonably
satisfactory to Lenders and (iii) such default is cured not later than sixty
(60) days after the expiration of such thirty (30) day period.
10.8 No Longer General Partner. The General Partner shall no longer be
the sole general partner of Borrower.
-61-
62
10.9 Material Adverse Financial Change. The Borrower or General
Partner has suffered a Material Adverse Financial Change or is Insolvent.
10.10 Bankruptcy.
(a) The General Partner, the Borrower or any Subsidiary having
more than $10,000,000 of Equity Value (as defined below) shall (i) have
an order for relief entered with respect to it under the Federal
bankruptcy laws as now or hereafter in effect, (ii) make an assignment
for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial
portion of its Property, (iv) institute any proceeding seeking an order
for relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it as a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, (v) take
any corporate action to authorize or effect any of the foregoing
actions set forth in this Section 10.10(a), (vi) fail to contest in
good faith any appointment or proceeding described in Section 10.10(b)
or (vii) not pay, or admit in writing its inability to pay, its debts
generally as they become due. As used herein, the term "Equity Value"
of a Subsidiary shall mean (1) Property Operating Income of such
Subsidiary's Properties owned as of the Agreement Execution Date
capitalized at a 10.5% rate, plus (2) the purchase price of any of such
Subsidiary's Properties acquired after the Agreement Execution Date
less (3) any Indebtedness of such Subsidiary;
(b) A receiver, trustee, examiner, liquidator or similar
official shall be appointed for the General Partner, Borrower or any
Subsidiary having more than $10,000,000 of Equity Value or any
substantial portion of any of their Properties, or a proceeding
described in Section 10.10(a)(iv) shall be instituted against the
General Partner, the Borrower or any such Subsidiary and such
appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of sixty (60) consecutive days.
10.11 Legal Proceedings. Borrower or General Partner is enjoined,
restrained or in any way prevented by any court order or judgment or if a notice
of lien, levy, or assessment is filed of record with respect to all or any part
of the Properties by any governmental department, office or agency, which could
materially adversely affect the performance of the obligations of such parties
hereunder or under the Loan Documents, as the case may be, or if any proceeding
is filed or commenced seeking to enjoin, restrain or in any way prevent the
foregoing parties from conducting all or a substantial part of their respective
business affairs and failure to vacate, stay, dismiss, set aside or remedy the
same within ninety (90) days after the occurrence thereof.
10.12 ERISA. Borrower or General Partner is deemed to hold "plan
assets" within the meaning of ERISA or any regulations promulgated thereunder of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code).
-62-
63
10.13 Second REMIC Loan. Any "Event of Default" (as such term is
defined in the Second REMIC Loan Agreement) occurs under the Second REMIC Loan
Agreement with respect to the Second REMIC Loan.
10.14 Failure to Satisfy Judgments. The General Partner, the Borrower
or any of its Subsidiaries shall fail within sixty (60) days to pay, bond or
otherwise discharge any judgments or orders for the payment of money in an
amount which, when added to all other judgments or orders outstanding against
the General Partner, the Borrower or any Subsidiary would exceed $10,000,000 in
the aggregate, which have not been stayed on appeal or otherwise appropriately
contested in good faith, unless the liability is insured against and the insurer
has not challenged coverage of such liability.
10.15 Environmental Remediation. Failure to remediate within the time
period required by law or governmental order, (or within a reasonable time in
light of the nature of the problem if no specific time period is so
established), environmental problems in violation of applicable law related to
Properties of Borrower and/or its Subsidiaries where the estimated cost of
remediation is in the aggregate in excess of $20,000,000, in each case after all
administrative hearings and appeals have been concluded.
Article XI.
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
11.1 Acceleration.
If any Event of Default described in Section 10.10 hereof occurs, the
obligation of the Lenders to make Advances and of the Issuing Bank to issue
Facility Letters of Credit hereunder shall automatically terminate and the
Obligations shall immediately become due and payable. If any other Event of
Default described in Article X hereof occurs, such obligation to make Advances
and to issue Facility Letters of Credit shall be terminated and at the election
of the Required Lenders, the Obligations may be declared to be due and payable.
In addition to the foregoing, following the occurrence of an Event of
Default and so long as any Facility Letter of Credit has not been fully drawn
and has not been cancelled or expired by its terms, upon demand by the Required
Lenders the Borrower shall deposit in the Letter of Credit Collateral Account
cash in an amount equal to the aggregate undrawn face amount of all outstanding
Facility Letters of Credit and all fees and other amounts due or which may
become due with respect thereto. The Borrower shall have no control over funds
in the Letter of Credit Collateral Account, which funds shall be invested by the
Administrative Agent from time to time in its discretion in certificates of
deposit of Bank One having a maturity not exceeding thirty (30) days. Such funds
shall be promptly applied by the Administrative Agent to reimburse the Issuing
Bank for drafts drawn from time to time under the Facility Letters of Credit and
to pay any fees or other amounts due with respect thereto. Such funds, if any,
remaining in the Letter of Credit Collateral Account following the payment of
all Obligations in full shall, unless the Administrative Agent is otherwise
directed by a court of competent jurisdiction, be promptly paid over to the
Borrower.
-63-
64
11.2 Preservation of Rights; Amendments. No delay or omission of the
Lenders in exercising any right under the Loan Documents shall impair such right
or be construed to be a waiver of any Default or an acquiescence therein, and
the making of an Advance notwithstanding the existence of a Default or the
inability of the Borrower to satisfy the conditions precedent to such Advance
shall not constitute any waiver or acquiescence. Any single or partial exercise
of any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Administrative Agent and the number of Lenders
required hereunder and then only to the extent in such writing specifically set
forth. All remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Lenders until the Obligations have
been paid in full.
Article XII.
THE ADMINISTRATIVE AGENT
12.1 Appointment. Bank One is hereby appointed Administrative Agent
hereunder and under each other Loan Document, and each of the Lenders authorizes
the Administrative Agent to act as the agent of such Lender. The Administrative
Agent agrees to act as such upon the express conditions contained in this
Article XII. The Administrative Agent shall not have a fiduciary relationship in
respect of any Lender by reason of this Agreement, except to the extent the
Administrative Agent acts as an agent with respect to the receipt or payment of
funds hereunder.
12.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
12.3 General Immunity. Neither the Administrative Agent (in its
capacity as Administrative Agent) nor any of its directors, officers, agents or
employees shall be liable to the Borrower, the Lenders or any Lender for any
action taken or omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith, except for its or their
own gross negligence or willful misconduct. Subject to the express terms hereof,
the Administrative Agent will, unless otherwise instructed as described in
Section 12.5, endeavor to administer the Facility in substantially the same
manner as it administers similar credit facilities held for its own account.
12.4 No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent (in its capacity as Administrative Agent) nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document; (iii) the satisfaction of any
condition specified in Article V,
-64-
65
except receipt of items required to be delivered to the Administrative Agent; or
(iv) the validity, effectiveness or genuineness of any Loan Document or any
other instrument or writing furnished in connection therewith.
12.5 Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders or all Lenders, as the case may be,
and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders and on all holders of Notes. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
12.6 Employment of Administrative Agents and Counsel. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its duties
hereunder and under any other Loan Document.
12.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of outside counsel selected by the
Administrative Agent.
12.8 Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
accordance with their respective Percentages (i) for any amounts not reimbursed
by the Borrower for which the Administrative Agent is entitled to reimbursement
by the Borrower under the Loan Documents, (ii) for any other reasonable expenses
incurred by the Administrative Agent on behalf of the Lenders, in connection
with the preparation, execution, delivery, administration and enforcement of the
Loan Documents, if not paid by Borrower, and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent (in its capacity as
Administrative Agent and not as a Lender) in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Administrative Agent.
12.9 Rights as a Lender. With respect to the Commitment, Advances made
by it and the Note issued to it, the Administrative Agent shall have the same
rights and powers hereunder and under any other Loan Document as any Lender and
may exercise the same as though it were not the Administrative Agent, and the
term "Lender" or "Lenders" shall, unless the context
-65-
66
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent, in its individual capacity, may accept
deposits from, lend money to, and generally engage in any kind of trust, debt,
equity or other transaction, in addition to those contemplated by this Agreement
or any other Loan Document, with the Borrower or any of its Subsidiaries in
which the Borrower or such Subsidiary is not restricted hereby from engaging
with any other Person.
12.10 [INTENTIONALLY OMITTED]
12.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
12.12 Successor Administrative Agent. Each Lender agrees that Bank One
shall serve as Administrative Agent at all times during the term of this
Facility, except that Bank One may resign as Administrative Agent in the event
(x) Bank One and Borrower shall mutually agree in writing or (y) an Event of
Default shall occur under the Loan Documents (irrespective of whether such Event
of Default subsequently is waived), or (z) Bank One shall determine, in its sole
reasonable discretion, that because of its other banking relationships with
Borrower and/or Borrower's Affiliates at the time of such decision Bank One's
resignation as Administrative Agent would be necessary in order to avoid
creating an appearance of impropriety on the part of Bank One. Bank One (or any
successor Administrative Agent) may be removed as Administrative Agent by
written notice received by Administrative Agent from all of the other Lenders
(i) at any time with cause (i.e., a breach by Bank One (or any successor
Administrative Agent) of its duties as Administrative Agent hereunder), or (ii)
without cause if Bank One (or any successor Administrative Agent) assigns a
portion of Bank One's (or such successor Administrative Agent's) then applicable
Commitment in an amount such that following such assignment Bank One's (or such
successor Administrative Agent's) then remaining Commitment is less than the
then applicable Commitment of any other Lender hereunder. Upon any such
resignation or removal, UBS shall be the successor Administrative Agent (unless
objected to by the Required Lenders) or, if UBS declines or is so objected to,
the Required Lenders shall have the right to appoint, on behalf of the Borrower
and the Lenders, a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. Such successor Administrative Agent shall be a
commercial bank having capital and retained earnings of at least $100,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent (including the right to receive
any fees for performing such duties
-66-
67
which accrue thereafter), and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article XII shall continue in
effect for its benefit and that of the other Lenders in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder and under the other Loan Documents.
12.13 Notice of Defaults. If a Lender becomes aware of a Default or
Event of Default, such Lender shall notify the Administrative Agent of such
fact. Upon receipt of such notice that a Default or Event of Default has
occurred, the Administrative Agent shall notify each of the Lenders of such
fact.
12.14 Requests for Approval. If the Administrative Agent requests in
writing the consent or approval of a Lender, such Lender shall respond and
either approve or disapprove definitively in writing to the Administrative Agent
within ten Business Days (or sooner if such notice specifies a shorter period,
but in no event less than five Business Days for responses based on
Administrative Agent's good faith determination that circumstances exist
warranting its request for an earlier response) after such written request from
the Administrative Agent. If the Lender does not so respond, that Lender shall
be deemed to have approved the request. Upon request, the Administrative Agent
shall notify the Lenders which Lenders, if any, failed to respond to a request
for approval.
12.15 Copies of Documents. Administrative Agent shall promptly deliver
to each of the Lenders copies of all notices of default and other formal notices
sent or received and according to Section 15.1 of this Agreement. Administrative
Agent shall deliver to Lenders within 15 Business Days following receipt, copies
of all financial statements, certificates and notices received regarding the
General Partner's ratings except to the extent such items are required to be
furnished directly to the Lenders by Borrower hereunder. Within fifteen Business
Days after a request by a Lender to the Administrative Agent for other documents
furnished to the Administrative Agent by the Borrower, the Administrative Agent
shall provide copies of such documents to such Lender except where this
Agreement obligates Administrative Agent to provide copies in a shorter period
of time.
12.16 Defaulting Lenders. At such time as a Lender becomes a Defaulting
Lender, such Defaulting Lender's right to vote on matters which are subject to
the consent or approval of the Required Lenders, such Defaulting Lender or all
Lenders shall be immediately suspended until such time as the Lender is no
longer a Defaulting Lender. If a Defaulting Lender has failed to fund its
Percentage of any Advance and until such time as such Defaulting Lender
subsequently funds its Percentage of such Advance, all Obligations owing to such
Defaulting Lender hereunder shall be subordinated in right of payment, as
provided in the following sentence, to the prior payment in full of all
principal of, interest on and fees relating to the Loans funded by the other
Lenders in connection with any such Advance in which the Defaulting Lender has
not funded its Percentage (such principal, interest and fees being referred to
as "Senior Loans" for the purposes of this section). All amounts paid by the
Borrower and otherwise due to be applied to the Obligations owing to such
Defaulting Lender pursuant to the terms hereof shall be distributed by the
Administrative Agent to the other Lenders in accordance with their respective
Percentages (recalculated for the purposes hereof to exclude the Defaulting
Lender) until all
-67-
68
Senior Loans have been paid in full. At that point, the "Defaulting Lender"
shall no longer be deemed a Defaulting Lender. After the Senior Loans have been
paid in full equitable adjustments will be made in connection with future
payments by the Borrower to the extent a portion of the Senior Loans had been
repaid with amounts that otherwise would have been distributed to a Defaulting
Lender but for the operation of this Section 12.16. This provision governs only
the relationship among the Administrative Agent, each Defaulting Lender and the
other Lenders; nothing hereunder shall limit the obligation of the Borrower to
repay all Loans in accordance with the terms of this Agreement. The provisions
of this Section 12.16 shall apply and be effective regardless of whether a
Default occurs and is continuing, and notwithstanding (i) any other provision of
this Agreement to the contrary, (ii) any instruction of the Borrower as to its
desired application of payments or (iii) the suspension of such Defaulting
Lender's right to vote on matters as provided above.
Article XIII.
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns.
The terms and provisions of the Loan Documents shall be binding upon
and inure to the benefit of Borrower and the Lenders and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights or obligations under the Loan Documents without the consent of
all the Lenders and any assignment by any Lender must be made in compliance with
Section 13.3. The Administrative Agent may treat the payee of any Note as the
owner thereof for all purposes hereof unless and until such payee complies with
Section 13.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of a Note agrees by acceptance thereof to be
bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person who at the time of making such request or
giving such authority or consent is the holder of any Note, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Note or of
any Note or Notes issued in exchange therefor.
13.2 Participations.
13.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Advance owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the holder of any such Note for all purposes under
the Loan Documents, all amounts payable by Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and Borrower and the Administrative Agent and
the
-68-
69
other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
the Loan Documents.
13.2.2 Voting Rights. Each Lender shall retain the sole right
to vote its Percentage of the Aggregate Commitment, without the consent
of any Participant, for the approval or disapproval of any amendment,
modification or waiver of any provision of the Loan Documents, provided
that such Lender may grant such Participant the right to approve any
amendment, modification or waiver which forgives principal, interest or
fees or reduces the interest rate or fees payable hereunder, postpones
any date fixed for any regularly-scheduled payment of principal of or
interest on the Obligations, or extends the Maturity Date.
13.3 Assignments.
13.3.1 Permitted Assignments. Any Lender may, with the prior
written consent of Administrative Agent, Arranger and Borrower (which
consents shall not be unreasonably withheld or delayed), in accordance
with applicable law, at any time assign to one or more banks or other
entities (collectively, "Purchasers") either all or a portion equal to
or greater than $5,000,000 of its rights and obligations under the Loan
Documents, except that no consent of Borrower shall be required if an
Event of Default has occurred and is continuing and that no consent of
Administrative Agent, Arranger or Borrower shall ever be required for
(i) any assignment to a Person directly or indirectly controlling,
controlled by or under direct or indirect common control with the
assigning Lender or (ii) the pledge or assignment by a Lender of such
Lender's Note and other rights under the Loan Documents to any Federal
Reserve Bank in accordance with applicable law. Such assignments and
assumptions shall be substantially in the form of Exhibit J hereto. The
Borrower shall execute any and all documents which are customarily
required by such Lender (including, without limitation, a replacement
promissory note or notes in the forms provided hereunder) in connection
with any such assignment, but Borrower shall not be obligated to pay
any fees and expenses incurred by any Lender in connection with any
assignment pursuant to this Section. Any Lender selling all or any part
of its rights and obligation hereunder in a transaction requiring the
consent of the Administrative Agent shall pay to the Administrative
Agent a fee of $3,500.00 per assignee to reimburse Administrative Agent
for its involvement in such assignment.
13.3.2 Effect; Effective Date of Assignment. Upon delivery to
the Administrative Agent of a notice of assignment executed by the
assigning Lender and the Purchaser, such assignment shall become
effective on the effective date specified in such notice of assignment.
The notice of assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and the Loan under the applicable assignment
agreement are "plan assets" as defined under ERISA and that the rights
and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by the Lenders and
shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it
-69-
70
were an original party hereto, and no further consent or action by
Borrower, the Lenders or the Administrative Agent shall be required to
release the transferor Lender with respect to the percentage of the
Commitment and Advances assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
13.3.2, the transferor Lender, the Administrative Agent and Borrower
shall make appropriate arrangements so that replacement Notes are
issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted
pursuant to such assignment.
13.4 Dissemination of Information. Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of Borrower and General Partner. Each Transferee
shall agree in writing to keep confidential any such information which is not
publicly available.
13.5 Tax Treatment. If any interest in any Loan Document is transferred
to any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to comply
with Section 7(vii) of the Assignment Agreement attached hereto as Exhibit J.
Article XIV.
GENERAL PROVISIONS
14.1 Survival of Representations. All representations and warranties
contained in this Agreement shall survive delivery of the Notes and the making
of the Advances herein contemplated.
14.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
14.3 Taxes. Any recording and other taxes (excluding franchise, income
or similar taxes) or other similar assessments or charges payable or ruled
payable by any governmental authority incurred in connection with the
consummation of the transactions contemplated by this Agreement shall be paid by
the Borrower, together with interest and penalties, if any.
14.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
14.5 No Third Party Beneficiaries. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
-70-
71
14.6 Expenses; Indemnification. Subject to the provisions of this
Agreement, Borrower will pay (a) all out-of-pocket costs and expenses incurred
by the Administrative Agent and the Arranger (including the reasonable fees,
out-of-pocket expenses and other reasonable expenses of counsel, which counsel
may be employees of Administrative Agent) in connection with the preparation,
execution and delivery of this Agreement, the Notes, the Loan Documents and any
other agreements or documents referred to herein or therein and any amendments
thereto, (b) all out-of-pocket costs and expenses incurred by the Administrative
Agent and the Lenders (including the reasonable fees, out-of-pocket expenses and
other reasonable expenses of counsel to the Administrative Agent and the
Lenders, which counsel may be employees of Administrative Agent or the Lenders)
in connection with the enforcement and protection of the rights of the Lenders
under this Agreement, the Notes, the Loan Documents or any other agreement or
document referred to herein or therein, and (c) all reasonable and customary
costs and expenses of periodic audits by the Administrative Agent's personnel of
the Borrower's books and records provided that prior to an Event of Default,
Borrower shall be required to pay for only one such audit during any year. The
Borrower further agrees to indemnify the Lenders, their directors, officers and
employees against all losses, claims, damages, penalties, judgments, liabilities
and reasonable expenses (including, without limitation, all expenses of
litigation or preparation therefor whether or not the Lenders is a party
thereto) which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the proceeds of any
Advance hereunder, except that the foregoing indemnity shall not apply to a
Lender to the extent that any losses, claims, etc. are the result of such
Lender's gross negligence or willful misconduct. The obligations of the Borrower
under this Section shall survive the termination of this Agreement.
14.7 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
14.8 Nonliability of the Lenders. The relationship between the Borrower
and the Lenders shall be solely that of borrower and lender. The Lenders shall
not have any fiduciary responsibilities to the Borrower. The Lenders undertake
no responsibility to the Borrower to review or inform the Borrower of any matter
in connection with any phase of the Borrower's business or operations.
14.9 Choice of Law. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
14.10 Consent to Jurisdiction. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN
-71-
72
DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE LENDERS TO
BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE LENDERS OR ANY AFFILIATE OF
THE LENDERS INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A
COURT IN CHICAGO, ILLINOIS.
14.11 Waiver of Jury Trial. THE BORROWER, THE GENERAL PARTNER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
14.12 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights or obligations under the Loan
Documents. Any assignee or transferee of the Notes agrees by acceptance thereof
to be bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the holder of the Notes, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Notes or of
any note or notes issued in exchange therefor.
14.13 Entire Agreement; Modification of Agreement. The Loan Documents
embody the entire agreement among the Borrower, General Partner, Administrative
Agent, and Lenders and supersede all prior conversations, agreements,
understandings, commitments and term sheets among any or all of such parties
with respect to the subject matter hereof. Any provisions of this Agreement may
be amended or waived if, but only if, such amendment or waiver is in writing and
is signed by the Borrower, and Administrative Agent if the rights or duties of
Administrative Agent are affected thereby, and
(a) each of the Lenders if such amendment or waiver
(i) reduces or forgives any payment of principal or
interest on the Obligations or any fees payable by Borrower to
such Lender hereunder; or
(ii) postpones the date fixed for any payment of
principal of or interest on the Obligations or any fees
payable by Borrower to such Lender hereunder; or
-72-
73
(iii) changes the amount of such Lender's Commitment
(other than pursuant to an assignment permitted under Section
13.3 or a reduction in the Aggregate Commitment pursuant to
Section 2.17 hereof) or the unpaid principal amount of such
Lender's Note; or
(iv) extends the Maturity Date; or
(v) releases or limits the liability of the General
Partner under the Loan Documents; or
(vi) changes the definition of Required Lenders or
modifies any requirement for consent by each of the Lenders;
or
(vii) modifies or waives any covenant contained in
Sections 8.13, 9.3, 9.5, 9.6, 9.8 or 9.10 hereof; or
(b) the Required Lenders, to the extent expressly provided for
herein and in the case of all other waivers or amendments if no
percentage of Lenders is specified herein.
14.14 Dealings with the Borrower. The Lenders and their affiliates may
accept deposits from, extend credit to and generally engage in any kind of
banking, trust or other business with the Borrower or the General Partner or any
of their Affiliates regardless of the capacity of the Lenders hereunder.
14.15 Set-Off.
(a) If an Event of Default shall have occurred, each Lender
shall have the right, at any time and from time to time without notice
to the Borrower, any such notice being hereby expressly waived, to
set-off and to appropriate or apply any and all deposits of money or
property or any other indebtedness at any time held or owing by such
Lender to or for the credit or the account of the Borrower against and
on account of all outstanding Obligations and all Obligations which
from time to time may become due hereunder and all other obligations
and liabilities of the Borrower under this Agreement, irrespective of
whether or not such Lender shall have made any demand hereunder and
whether or not said obligations and liabilities shall have matured.
(b) Each Lender agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise, receive payment of a
proportion of the aggregate amount of principal, interest or fees due
with respect to any Note held by it which is greater than the
proportion received by any other Lender in respect of the aggregate
amount of principal, interest or fees due with respect to any Note held
by such other Lender, the Lender receiving such proportionately greater
payment shall purchase such participations in the Notes held by the
other Lenders and such other adjustments shall be made as may be
required so that all such payments of principal, interest or Fees with
respect to the Notes held by the Lenders shall be shared by the Lenders
pro rata according to their respective Commitments.
-73-
74
14.16 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrower and each of the Lenders shown on the signature pages hereof.
Article XV.
NOTICES
15.1 Giving Notice. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below or at such other address as may be designated by
such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes). Notice may be given as follows:
To the Borrower:
First Industrial, L.P.
c/o First Industrial Realty Trust, Inc.
311 South Wacker Drive
Suite 4000
Chicago, Illinois 60606
Attention: Mr. Scott Musil
Telecopy: (312) 895-9380
To General Partner:
First Industrial Realty Trust, Inc.
311 South Wacker Drive
Suite 4000
Chicago, Illinois 60606
Attention: Mr. Michael Havala
Telecopy: (312) 922-9851
Each of the above with a copy to:
Barack Ferrazzano Kirschbaum & Perlman
333 W. Wacker Drive
Suite 2700
Chicago, Illinois 60606
Attention: Howard A. Nagelberg, Esq.
Telecopy: (312) 984-3150
To each Lender:
-74-
75
As shown below the Lenders' signatures.
To the Administrative Agent:
Bank One, NA
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Corporate Real Estate
Telecopy: (312) 732-1117
With a copy to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Patrick G. Moran, Esq.
Telecopy: (312) 876-7934
To the Syndication Agent:
UBS Warburg LLC
c/o UBS AG, New York Branch
299 Park Avenue
New York, New York 10171-0026
Attention: Xiomara Martez
Telecopy: (212) 821-4138
To the Documentation Agent:
Bank of America, N.A.
901 Main Street
51st Floor
Mail Code: TX1-492-51-01
Dallas, Texas 75202-3714
Attention: Will T. Bowers, Jr.
Telecopy: 214-209-0085
15.2 Change of Address. Each party may change the address for service
of notice upon it by a notice in writing to the other parties hereto.
-75-
76
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
BORROWER: FIRST INDUSTRIAL, L.P.
By: FIRST INDUSTRIAL REALTY
TRUST, INC., its General Partner
By:
-----------------------------------------
Title:
--------------------------------------
GENERAL PARTNER: FIRST INDUSTRIAL REALTY TRUST, INC.
By:
-----------------------------------------
Title:
--------------------------------------
-76-
77
LENDERS: BANK ONE, NA
By:
-------------------------------------------
Title:
----------------------------------------
Commitment: $35,000,000
Percentage of
Aggregate Commitment: 11.666666666667%
Address for Notices:
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Corporate Real Estate
Telephone: 312/732-3044
Telecopy: 312/732-1117
AMSOUTH BANK
By:
-------------------------------------------
Title:
----------------------------------------
Commitment: $31,000,000
Percentage of
Aggregate Commitment: 10.333333333333%
Address for Notices:
1900 5th Avenue, North
AmSouth Sonat Tower, 9th Floor
Birmingham, Alabama 35203
Attention: Bill Dobbins
Telephone: 205/801-0621
Telecopy: 205/326-4075
-77-
78
BANK OF AMERICA, N.A.
By:
-------------------------------------------
Title:
----------------------------------------
Commitment: $35,000,000
Percentage of
Aggregate Commitment: 11.666666666667%
Address for Notices:
Bank of America, N.A.
901 Main Street, 51st Floor
Mail Code: TX1-492-51-01
Dallas, Texas 75202-3714
Attention: Will T. Bowers, Jr.
Telephone: 214/209-0276
Telecopy: 214/209-0085
BANK OF MONTREAL
By:
-------------------------------------------
Title:
----------------------------------------
Commitment: $22,000,000
Percentage of
Aggregate Commitment: 7.333333333333%
Address for Notices:
115 South LaSalle Street, 12 West
Chicago, Illinois 60603
Attention: Greg Steele and David Rubin
Telephone: 312/750-3489
Telecopy: 312/750-6057
-78-
79
CHEVY CHASE BANK
By:
-------------------------------------------
Title:
----------------------------------------
Commitment: $18,000,000
Percentage of
Aggregate Commitment: 6.000000000000%
Address for Notices:
8401 Connecticut Avenue, 9th Floor
Chevy Chase, Maryland 20815
Attention: Eric Lawrence
Telephone: 301/986-7216
Telecopy: 301/986-7516
COMERICA BANK
By:
-------------------------------------------
Title:
----------------------------------------
Commitment: $18,000,000
Percentage of
Aggregate Commitment: 6.000000000000%
Address for Notices:
500 Woodward
Detroit, Michigan 48226-3256
Attention: Leslie Vogel
Telephone: 313/222-9290
Telecopy: 313/222-9295
-79-
80
COMMERZBANK AG, New York and Grand Cayman
Branches
By:
-------------------------------------------
Title:
----------------------------------------
By:
-------------------------------------------
Title:
----------------------------------------
Commitment: $31,000,000
Percentage of
Aggregate Commitment: 10.333333333333%
Address for Notices:
Two World Financial Center, 34th Floor
New York, New York 10281
Attention: Doug Traynor
Telephone: 212/266-7206
Telecopy: 212/266-7565
THE NORTHERN TRUST COMPANY
By:
----------------------------------------
Title:
-------------------------------------
Commitment: $18,000,000
Percentage of
Aggregate Commitment: 6.000000000000%
Address for Notices:
50 South LaSalle Street
Chicago, Illinois 60675
Attention: Robert Wiarda
Telephone: 312/444-3380
Telecopy: 312/444-7028
-80-
81
SOUTHTRUST BANK
By:
----------------------------------------
Title:
-------------------------------------
Commitment: $22,000,000
Percentage of
Aggregate Commitment: 7.333333333333%
Address for Notices:
420 North 20th Street
Birmingham, Alabama 35290
Attention: Ronnie Brantley
Telephone: 205/254-4438
Telecopy: 205/254-8270
UBS AG, STAMFORD BRANCH
By:
----------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Title:
-------------------------------------
Commitment: $35,000,000
Percentage of
Aggregate Commitment: 11.666666666667%
Address for Notices:
c/o UBS AG, New York Branch
299 Park Avenue
New York, New York 10171-0026
Attention: Xiomara Martez
Telephone: 212/821-3872
Telecopy: 212/821-4138
-81-
82
WACHOVIA BANK, N.A.
By:
-------------------------------------------
Title:
----------------------------------------
Commitment: $35,000,000
Percentage of
Aggregate Commitment: 11.666666666667%
Address for Notices:
191 Peachtree Street N.E.
Atlanta, Georgia 30303
Attention: Cathy Casey
Telephone:
Telecopy: 404/332-4066
ADMINISTRATIVE AGENT: BANK ONE, NA
By:
----------------------------------------
Title:
-------------------------------------
Address for Notices:
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Corporate Real Estate
Telephone: 312/732-3044
Telecopy: 312/732-1117
SYNDICATION AGENT: UBS WARBURG LLC
By:
----------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Title:
-------------------------------------
DOCUMENTATION AGENT: BANK OF AMERICA, N.A.
By:
----------------------------------------
Title:
-------------------------------------
-82-
83
EXHIBIT A
PERCENTAGES
See Percentages on Preceding Signature Pages
-83-
84
EXHIBIT B-1
FORM OF NOTE
, 2000
-----------
On or before the Maturity Date, as defined in that certain Amended and
Restated Unsecured Revolving Credit Agreement dated as of June 30, 2000 (the
"Agreement") between FIRST INDUSTRIAL, L.P., a Delaware limited partnership
("Borrower"), First Industrial Realty Trust, Inc., a Maryland corporation, UBS
AG, Stamford Branch, UBS Warburg LLC, as Syndication Agent, Bank of America,
N.A., individually and as Documentation Agent, Bank One, NA, individually and as
Administrative Agent for the Lenders (as such terms are defined in the
Agreement), and the other Lenders listed on the signature pages of the
Agreement, Borrower promises to pay to the order of (the
"Lender"), or its successors and assigns, the principal sum of
AND NO/100 DOLLARS ($ ) or the aggregate unpaid principal amount of all
Loans (other than Competitive Bid Loans) made by the Lender to the Borrower
pursuant to Section 2.1 of the Agreement, in immediately available funds at the
office of the Administrative Agent in Chicago, Illinois, together with interest
on the unpaid principal amount hereof at the rates and on the dates set forth in
the Agreement. The Borrower shall pay this Promissory Note ("Note") in full on
or before the Maturity Date in accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Advance and the date and amount of each principal
payment hereunder; provided, however, that the failure of the Lender to so
record shall not affect the obligations of the Borrower hereunder or under the
other Loan Documents.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, inter alia, a statement of the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or
-84-
85
enforcement of this Note, and expressly agree that this Note, or any payment
hereunder, may be extended from time to time, and expressly consent to the
release of any party liable for the obligation secured by this Note, the release
of any of the security of this Note, the acceptance of any other security
therefor, or any other indulgence or forbearance whatsoever, all without notice
to any party and without affecting the liability of the Borrower and any
endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc., its
general partner
By:
------------------------------
Its:
-----------------------------
-85-
86
PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
-86-
87
EXHIBIT B-2
FORM OF COMPETITIVE BID NOTE
, 2000
-------------
On or before the last day of each "Interest Period" applicable to a
"Competitive Bid Loan", as defined in that certain Amended and Restated
Unsecured Revolving Credit Agreement dated as of June 30, 2000 (the "Agreement")
between FIRST INDUSTRIAL, L.P., a Delaware limited partnership ("Borrower"),
First Industrial Realty Trust, Inc., a Maryland corporation, UBS AG, Stamford
Branch, Bank of America, N.A., Bank One, NA, individually and as Administrative
Agent for the Lenders (as such terms are defined in the Agreement), Borrower
promises to pay to the order of (the "Lender"), or its
successors and assigns, the unpaid principal amount of such Competitive Bid Loan
made by the Lender to the Borrower pursuant to Section 2.16 of the Agreement, in
immediately available funds at the office of the Administrative Agent in
Chicago, Illinois, together with interest on the unpaid principal amount hereof
at the rates and on the dates set forth in the Agreement. The Borrower shall pay
any remaining unpaid principal amount of such Competitive Bid Loans under this
Competitive Bid Note ("Note") in full on or before the Maturity Date in
accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, amount and due date of each Competitive Bid Loan and the date and
amount of each principal payment hereunder; provided, however, that the failure
of the Lender to so record shall not affect the obligations of the Borrower
hereunder or under the other Loan Documents.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, inter alia, a statement of the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be
-87
88
extended from time to time, and expressly consent to the release of any party
liable for the obligation secured by this Note, the release of any of the
security of this Note, the acceptance of any other security therefor, or any
other indulgence or forbearance whatsoever, all without notice to any party and
without affecting the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By:
----------------------------------
Its:
---------------------------------
-88-
89
PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
-89-
90
EXHIBIT C-1
FORM OF COMPETITIVE BID QUOTE REQUEST
(Section 2.16(b))
To: Bank One, NA
as administrative agent (the "Agent")
From: First Industrial, L.P. (the "Borrower")
Re: Amended and Restated Unsecured Revolving Credit Agreement dated as
of June 30, 2000 among the Borrower, First Industrial Realty
Trust, Inc., the lenders from time to time party thereto, UBS AG,
Stamford Branch, Bank of America, N.A. and Bank One, NA, as Agent
for such lenders (as amended, supplemented or otherwise modified
from time to time through the date hereof, the "Agreement")
1. Capitalized terms used herein have the meanings assigned to them in
the Agreement.
2. We hereby give notice pursuant to Section 2.16(b) of the Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Loan(s):
Borrowing Date: , 20
---------------- ---
Principal Amount(1) Interest Period(2)
3. Such Competitive Bid Quotes should offer [a Competitive LIBOR
Margin] [an Absolute Rate].
4. Upon acceptance by the undersigned of any or all of the Competitive
Bid Loans offered by Lenders in response to this request, the undersigned shall
be deemed to affirm as of the Borrowing Date thereof the representations and
warranties made in Article VI of the Agreement.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc., its
general partner
By:
----------------------------------
Title:
-------------------------------
- -----------------------------
(1) Amount must be at least $10,000,000 and an integral multiple of
$1,000,000.
(2) One, two, three or six months (Competitive LIBOR Margin) or up to 180
days (Absolute Rate), subject to the provisions of the definitions of LIBOR
Interest Period and Absolute Interest Period.
-90-
91
EXHIBIT C-2
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.16(c))
To: Each of the Lenders party to
the Agreement referred to below
From: Invitation for Competitive Bid Quotes to
First Industrial, L.P. (the "Borrower")
Pursuant to Section 2.16(c) of the Amended and Restated Unsecured
Revolving Credit Agreement dated as of June 30, 2000 among the Borrower, First
Industrial Realty Trust, Inc., the lenders from time to time party thereto, UBS
AG, Stamford Branch, Bank of America, N.A. and Bank One, NA, as Administrative
Agent for such lenders (as amended, supplemented or otherwise modified from time
to time through the date hereof, the "Agreement"), we are pleased on behalf of
the Borrower to invite you to submit Competitive Bid Quotes to the Borrower for
the following proposed Competitive Bid Loan(s):
Borrowing Date: , 20
----------------- ---
Principal Amount Interest Period
Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate]. Your Competitive Bid Quote must comply with Section 2.16(d)
of the Agreement and the foregoing. Capitalized terms used herein have the
meanings assigned to them in the Agreement.
Please respond to this invitation by no later than 9:00 a.m. (Chicago
time) on , 20 .
--------------- ---
BANK ONE, NA, as Administrative Agent
By:
----------------------------------
Title:
-------------------------------
-91-
92
EXHIBIT C-3
COMPETITIVE BID QUOTE
(Section 2.16(d))
, 20
----------- ---
To: Bank One, NA,
as Administrative Agent
Re: Competitive Bid Quote to First Industrial, L.P.
(the "Borrower")
In response to your invitation on behalf of the Borrower dated
, 20 , we hereby make the following Competitive Bid Quote
pursuant to Section 2.16(d) of the Agreement hereinafter referred to and on the
following terms:
1. Quoting Lender:
--------------------------------------------------------
2. Person to contact at Quoting Lender:
-----------------------------------
3. Borrowing Date: (3)
--------------------------------------------------------
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
- -------------- -------------- ---------------- -------------- ----------------
[Competitive
Principal Interest LIBOR [Absolute Minimum
Amount(4) Period(5) Margin(6)] Rate(7)] Amount(8)
- -------------- -------------- ---------------- -------------- ----------------
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Amended and Restated
Unsecured Revolving Credit
- ---------------------------
(3) As specified in the related Invitetion For Competetive Bid Quotes.
(4) Principal amount bid for each Interest Period may not exceed the
principal amount requested. Buds must be made for at least $10,000,000 and
integral multiples of $1,000,000.
(5) One, two, three or six months or up to 180 days, as specified in the
related Invitation Competetive Bid Quotes.
(6) Competetive LIBOR Margin for the applicable LIBOR Interest Period.
Specify percentage (rounded to the nearest 1/100 of 1%) and specify whether
"PLUS" or "MINUS".
(7) Specify rate of interest per annum (rounded to the nearest 1/100 of
1%).
(8) Specify minimum amount, if any, which the Borrower may accept (see
Section 2.16(d)(II)(D).
-92-
93
Agreement dated as of June 30, 2000, among the Borrower, First Industrial Realty
Trust, Inc., the lenders from time to time party thereto, UBS AG, Stamford
Branch, Bank of America, N.A. and Bank One, NA, as Administrative Agent for such
lenders (as amended, supplemented or otherwise modified from time to time
through the date hereof, the "Agreement"), irrevocably obligates us to make the
Competitive Bid Loan(s) for which any offer(s) are accepted, in whole or in
part. Capitalized terms used herein and not otherwise defined herein shall have
their meanings as defined in the Agreement.
Very truly yours,
[NAME OF LENDER]
By:
---------------------------------
Title:
------------------------------
-93-
94
EXHIBIT D
FORM OF GUARANTY
This Guaranty is made as of June 30, 2000, by First Industrial Realty
Trust, Inc., a Maryland corporation ("Guarantor"), to and for the benefit of UBS
AG, Stamford Branch, Bank of America, N.A., Bank One, NA, a national banking
association, individually ("Bank One"), and as administrative agent for itself
and the lenders listed on the signature pages of the Revolving Credit Agreement
(as defined below) and their respective successors and assigns (collectively,
"Lender").
RECITALS
A. First Industrial, L.P., a Delaware limited partnership ("Borrower"),
and Guarantor have requested that Lender make an unsecured revolving credit
facility available to Borrower in the aggregate principal amount of up to
$ , subject to future increase up to $400,000,000 ("Facility").
B. Lender has agreed to make available the Facility to Borrower
pursuant to the terms and conditions set forth in an Amended and Restated
Unsecured Revolving Credit Agreement bearing even date herewith between
Borrower, the Lenders and Guarantor ("Revolving Credit Agreement"). All
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Revolving Credit Agreement.
C. Borrower has executed and delivered to Lender one or more Promissory
Notes each of even date in the aggregate principal amount of $ as
evidence of its indebtedness to Lender with respect to the Facility (the
promissory notes described above, together with any amendments or allonges
thereto, or restatements, replacements or renewals thereof, and/or new
promissory notes to new Lenders under the Revolving Credit Agreement, are
collectively referred to herein as the "Note"). Borrower has also executed and
delivered to each Lender a note ("Competitive Loan Note") which evidences any
Competitive Bid Loans which may be made by such Lender under the Revolving
Credit Agreement.
D. Guarantor is the sole general partner of Borrower and, therefore,
Guarantor will derive financial benefit from the Facility evidenced by the Note,
Revolving Credit Agreement and the other Loan Documents. The execution and
delivery of this Guaranty by Guarantor is a condition precedent to the
performance by Lender of its obligations under the Revolving Credit Agreement.
AGREEMENTS
NOW, THEREFORE, Guarantor, in consideration of the matters described in
the foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, hereby agrees as follows:
1. Guarantor absolutely, unconditionally, and irrevocably guarantees to
Lender:
-94-
95
(a) the full and prompt payment of the principal of and interest
on the Note and/or any Competitive Bid Loan Note when due, whether at
stated maturity, upon acceleration or otherwise, and at all times
thereafter, and the prompt payment of all sums which may now be or may
hereafter become due and owing under the Note, any Competitive Bid Loan
Note, the Revolving Credit Agreement, and the other Loan Documents;
(b) the payment of all Enforcement Costs (as hereinafter defined
in Paragraph 7 hereof); and
(c) the full, complete, and punctual observance, performance, and
satisfaction of all of the obligations, duties, covenants, and
agreements of Borrower under the Revolving Credit Agreement and the
Loan Documents.
(d) All amounts due, debts, liabilities, and payment obligations
described in subparagraphs (a) and (b) of this Paragraph 1 are referred
to herein as the "Facility Indebtedness." All obligations described in
subparagraph (c) of this Paragraph 1 are referred to herein as the
"Obligations."
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, as aforesaid, in
each case beyond the expiration of any applicable grace period, Guarantor
agrees, on demand by Lender or the holder of the Note, to pay all the Facility
Indebtedness and to perform all the Obligations as are or then or thereafter
become due and owing or are to be performed under the terms of the Note, any
Competitive Bid Loan Note, the Revolving Credit Agreement and the other Loan
Documents, and to pay any reasonable expenses incurred by Lender in protecting,
preserving, or defending its interest in the Property or in connection with the
Facility or under any of the Loan Documents, including, without limitation, all
reasonable attorneys' fees and costs. Lender shall have the right, at its
option, either before, during or after pursuing any other right or remedy
against Borrower or Guarantor, to perform any and all of the Obligations by or
through any agent, contractor or subcontractor, or any of their agents, of its
selection, all as Lender in its sole discretion deems proper, and Guarantor
shall indemnify and hold Lender free and harmless from and against any and all
loss, damage, cost, expense, injury, or liability Lender may suffer or incur in
connection with the exercise of its rights under this Guaranty or the
performance of the Obligations, except to the extent the same arises as a result
of the gross negligence or willful misconduct of Lender.
All of the remedies set forth herein and/or provided by any of the Loan
Documents or law or equity shall be equally available to Lender, and the choice
by Lender of one such alternative over another shall not be subject to question
or challenge by Guarantor or any other person, nor shall any such choice be
asserted as a defense, set-off, or failure to mitigate damages in any action,
proceeding, or counteraction by Lender to recover or seeking any other remedy
under this Guaranty, nor shall such choice preclude Lender from subsequently
electing to exercise a different remedy. The parties have agreed to the
alternative remedies hereinabove specified in part because they recognize that
the choice of remedies in the event of a failure hereunder will necessarily be
and should properly be a matter of business judgment, which the passage of time
and events may or may not prove to have been the best choice to maximize
recovery by Lender
-95-
96
at the lowest cost to Borrower and/or Guarantor. It is the intention of the
parties that such choice by Lender be given conclusive effect regardless of such
subsequent developments.
3. Guarantor does hereby waive (i) notice of acceptance of this
Guaranty by Lender and any and all notices and demands of every kind which may
be required to be given by any statute, rule or law, (ii) any defense, right of
set-off or other claim which Guarantor may have against the Borrower or which
Guarantor or Borrower may have against Lender or the holder of the Note or the
holder of any Competitive Bid Loan Note (other than defenses relating to payment
of the Facility Indebtedness or the correctness of any allegation by Lender that
Borrower was in default in the performance of the Obligations), (iii)
presentment for payment, demand for payment (other than as provided for in
Paragraph 2 above), notice of nonpayment (other than as provided for in
Paragraph 2 above) or dishonor, protest and notice of protest, diligence in
collection and any and all formalities which otherwise might be legally required
to charge Guarantor with liability, (iv) any failure by Lender to inform
Guarantor of any facts Lender may now or hereafter know about Borrower, the
Facility, or the transactions contemplated by the Revolving Credit Agreement, it
being understood and agreed that Lender has no duty so to inform and that the
Guarantor is fully responsible for being and remaining informed by the Borrower
of all circumstances bearing on the existence or creation, or the risk of
nonpayment of the Facility Indebtedness or the risk of nonperformance of the
Obligations, and (v) any and all right to cause a marshalling of assets of the
Borrower or any other action by any court or governmental body with respect
thereto, or to cause Lender to proceed against any other security given to
Lender in connection with the Facility Indebtedness or the Obligations. Credit
may be granted or continued from time to time by Lender to Borrower without
notice to or authorization from Guarantor, regardless of the financial or other
condition of the Borrower at the time of any such grant or continuation. Lender
shall have no obligation to disclose or discuss with Guarantor its assessment of
the financial condition of Borrower. Guarantor acknowledges that no
representations of any kind whatsoever have been made by Lender to Guarantor. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon Lender except as expressly set forth in a writing duly signed and
delivered on behalf of Lender. Guarantor further agrees that any exculpatory
language contained in the Revolving Credit Agreement, the Note and any
Competitive Bid Loan Note shall in no event apply to this Guaranty, and will not
prevent Lender from proceeding against Guarantor to enforce this Guaranty.
4. Guarantor further agrees that Guarantor's liability as guarantor
shall in nowise be impaired by any renewals or extensions which may be made from
time to time, with or without the knowledge or consent of Guarantor of the time
for payment of interest or principal under the Note or any Competitive Bid Loan
Note or by any forbearance or delay in collecting interest or principal under
the Note or any Competitive Bid Loan Note, or by any waiver by Lender under the
Revolving Credit Agreement or any other Loan Documents, or by Lender's failure
or election not to pursue any other remedies it may have against Borrower, or by
any change or modification in the Note, Revolving Credit Agreement, any
Competitive Bid Loan Note or any other Loan Documents, or by the acceptance by
Lender of any additional security or any increase, substitution or change
therein, or by the release by Lender of any security or any withdrawal thereof
or decrease therein, or by the application of payments received from any source
to the payment of any obligation other than the Facility Indebtedness, even
though Lender might lawfully have elected to apply such payments to any part or
all of the Facility
-96-
97
Indebtedness, it being the intent hereof that Guarantor shall remain liable as
principal for payment of the Facility Indebtedness and performance of the
Obligations until all indebtedness has been paid in full and the other terms,
covenants and conditions of the Revolving Credit Agreement and other Loan
Documents and this Guaranty have been performed, notwithstanding any act or
thing which might otherwise operate as a legal or equitable discharge of a
surety. Guarantor further understands and agrees that Lender may at any time
enter into agreements with Borrower to amend and modify the Note, Revolving
Credit Agreement, any Competitive Bid Loan Note or other Loan Documents, or any
thereof, and may waive or release any provision or provisions of the Note, the
Revolving Credit Agreement, any Competitive Bid Loan Note and other Loan
Documents or any thereof, and, with reference to such instruments, may make and
enter into any such agreement or agreements as Lender and Borrower may deem
proper and desirable, without in any manner impairing this Guaranty or any of
Lender's rights hereunder or any of the Guarantor's obligations hereunder.
5. This is an absolute, unconditional, complete, present and continuing
guaranty of payment and performance and not of collection. Guarantor agrees that
this Guaranty may be enforced by Lender without the necessity at any time of
resorting to or exhausting any other security or collateral given in connection
herewith or with the Note, any Competitive Bid Loan Note, the Revolving Credit
Agreement, or any of the other Loan Documents, or resorting to any other
guaranties, and Guarantor hereby waives the right to require Lender to join
Borrower in any action brought hereunder or to commence any action against or
obtain any judgment against Borrower or to pursue any other remedy or enforce
any other right. Guarantor further agrees that nothing contained herein or
otherwise shall prevent Lender from pursuing concurrently or successively all
rights and remedies available to it at law and/or in equity or under the Note,
Revolving Credit Agreement, any Competitive Bid Loan Note or any other Loan
Documents, and the exercise of any of its rights or the completion of any of its
remedies shall not constitute a discharge of any of Guarantor's obligations
hereunder, it being the purpose and intent of the Guarantor that the obligations
of such Guarantor hereunder shall be primary, absolute, independent and
unconditional under any and all circumstances whatsoever. Neither Guarantor's
obligations under this Guaranty nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by any
impairment, modification, change, release or limitation of the liability of
Borrower under the Note, Revolving Credit Agreement, any Competitive Bid Loan
Note or other Loan Documents or by reason of Borrower's bankruptcy or by reason
of any creditor or bankruptcy proceeding instituted by or against Borrower. This
Guaranty shall continue to be effective and be deemed to have continued in
existence or be reinstated (as the case may be) if at any time payment of all or
any part of any sum payable pursuant to the Note, Revolving Credit Agreement,
any Competitive Bid Loan Note or any other Loan Document is rescinded or
otherwise required to be returned by the payee upon the insolvency, bankruptcy,
or reorganization of the payor, all as though such payment to Lender had not
been made, regardless of whether Lender contested the order requiring the return
of such payment. The obligations of Guarantor pursuant to the preceding sentence
shall survive any termination, cancellation, or release of this Guaranty.
6. This Guaranty shall be assignable by Lender to any assignee of all
or a portion of Lender's rights under the Loan Documents.
-97-
98
7. If: (i) this Guaranty, the Note, any Competitive Bid Loan Note, or
any other Loan Document is placed in the hands of an attorney for collection or
is collected through any legal proceeding; (ii) an attorney is retained to
represent Lender in any bankruptcy, reorganization, receivership, or other
proceedings affecting creditors' rights and involving a claim under this
Guaranty, the Note, any Competitive Bid Loan Note, the Revolving Credit
Agreement, or any Loan Document; (iii) an attorney is retained to provide advice
or other representation with respect to the Loan Documents in connection with an
enforcement action or potential enforcement action; or (iv) an attorney is
retained to represent Lender in any other legal proceedings whatsoever in
connection with this Guaranty, the Note, any Competitive Bid Loan Note, the
Revolving Credit Agreement, any of the Loan Documents, or any property subject
thereto (other than any action or proceeding brought by any Lender or
participant against the Administrative Agent (as defined in the Revolving Credit
Agreement) alleging a breach by the Administrative Agent of its duties under the
Loan Documents), then Guarantor shall pay to Lender upon demand all reasonable
attorney's fees, costs and expenses, including, without limitation, court costs,
filing fees, recording costs, expenses of foreclosure, title insurance premiums,
survey costs, minutes of foreclosure, and all other costs and expenses incurred
in connection therewith (all of which are referred to herein as "Enforcement
Costs"), in addition to all other amounts due hereunder.
8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of law to be in
violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of this Guaranty to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force to the fullest possible extent that they are legal, valid and enforceable,
that the remainder of this Guaranty shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions were
not contained therein, and that the rights, obligations and interest of Lender
or the holder of the Note or any Competitive Bid Loan Note under the remainder
of this Guaranty shall continue in full force and effect.
9. Any indebtedness of Borrower to Guarantor now or hereafter existing
is hereby subordinated to the Facility Indebtedness. Guarantor agrees that until
the entire Facility Indebtedness has been paid in full, (i) Guarantor will not
seek, accept, or retain for Guarantor's own account, any payment from Borrower
on account of such subordinated debt, and (ii) any such payments to Guarantor on
account of such subordinated debt shall be collected and received by Guarantor
in trust for Lender and shall be paid over to Lender on account of the Facility
Indebtedness without impairing or releasing the obligations of Guarantor
hereunder.
10. Guarantor waives and releases any claim (within the meaning of 11
U.S.C. ss. 101) which Guarantor may have against Borrower arising from a payment
made by Guarantor under this Guaranty and agrees not to assert or take advantage
of any subrogation rights of Guarantor or Lender or any right of Guarantor or
Lender to proceed against (i) Borrower for reimbursement, or (ii) any other
guarantor or any collateral security or guaranty or right of offset held by
Lender for the payment of the Facility Indebtedness and performance of the
Obligations, nor shall Guarantor seek or be entitled to seek any contribution or
reimbursement from Borrower or any
-98-
99
other guarantor in respect of payments made by Guarantor hereunder. It is
expressly understood that the waivers and agreements of Guarantor set forth
above constitute additional and cumulative benefits given to Lender for its
security and as an inducement for its extension of credit to Borrower. Nothing
contained in this Paragraph 10 is intended to prohibit Guarantor from making all
distributions to its constituent shareholders which are required by law from
time to time in order for Guarantor to maintain its status as a real estate
investment trust in compliance with all applicable provisions of the Code (as
defined in the Revolving Credit Agreement).
11. Any amounts received by Lender from any source on account of any
indebtedness may be applied by Lender toward the payment of such indebtedness,
and in such order of application, as Lender may from time to time elect.
12. The Guarantor hereby submits to personal jurisdiction in the State
of Illinois for the enforcement of this Guaranty and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce
this Guaranty. Guarantor hereby consents to the jurisdiction of either the
Circuit Court of Cook County, Illinois, or the United States District Court for
the Northern District of Illinois, in any action, suit, or proceeding which
Lender may at any time wish to file in connection with this Guaranty or any
related matter. Guarantor hereby agrees that an action, suit, or proceeding to
enforce this Guaranty may be brought in any state or federal court in the State
of Illinois and hereby waives any objection which Guarantor may have to the
laying of the venue of any such action, suit, or proceeding in any such court;
provided, however, that the provisions of this Paragraph shall not be deemed to
preclude Lender from filing any such action, suit, or proceeding in any other
appropriate forum.
13. All notices and other communications provided to any party hereto
under this Agreement or any other Loan Document shall be in writing or by telex
or by facsimile and addressed or delivered to such party at its address set
forth below or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by telex or facsimile, shall be deemed given when transmitted (answerback
confirmed in the case of telexes). Notice may be given as follows:
To the Guarantor:
First Industrial Realty Trust, Inc.
311 South Wacker Drive, Suite 4000
Chicago, Illinois 60606
Attention: Mr. Michael Havala
Telecopy: (312) 922-9851
-99-
100
With a copy to:
Barack Ferrazzano Kirschbaum & Perlman
333 W. Wacker Drive, Suite 2700
Chicago, Illinois 60606
Attention: Howard A. Nagelberg, Esq.
Telecopy: 312-984-3150
To the Lender:
c/o Bank One, NA, as agent
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Corporate Real Estate
Telecopy: (312) 732-1117
With a copy to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Patrick G. Moran, Esq.
Telecopy: (312) 876-7934
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
14. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Guarantor and shall inure to
the benefit of Lender's successors and assigns.
15. This Guaranty shall be construed and enforced under the internal
laws of the State of Illinois.
16. GUARANTOR AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE
ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHT UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR
ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty in the State
of Illinois as of the date first written above.
FIRST INDUSTRIAL REALTY TRUST, INC., a
Maryland corporation
-100-
101
By:
-------------------------------------
Its
-------------------------------------
-101-
102
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, the undersigned, a Notary Public, in and for said County, in the
State aforesaid, DO HEREBY CERTIFY, that , of First Industrial
Realty Trust, Inc., personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledged that he signed and delivered the said instrument as his own
free and voluntary act and as the free and voluntary act of said corporation,
for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal, this day of June, 2000.
-------------------------
Notary Public
-102-
103
EXHIBIT E
OPINION OF BORROWER'S COUNSEL
-103-
104
EXHIBIT F
OPINION OF GENERAL PARTNER'S COUNSEL
Included in Exhibit E
-104-
105
EXHIBIT G
WIRING INSTRUCTIONS
To: Bank One, NA, as Administrative Agent (the "Agent") under the Credit
Agreement Described Below
Re: Amended and Restated Unsecured Revolving Credit Agreement, dated
as of June 30, 2000 (as amended, modified, renewed or extended
from time to time, the "Agreement"), among First Industrial, L.P.
(the "Borrower"), First Industrial Realty Trust, Inc. ("General
Partner"), Bank One, NA, individually and as Administrative Agent,
UBS AG, Stamford Branch, UBS Warburg LLC, as Syndication Agent,
Bank of America, N.A., individually and as Documentation Agent,
and the Lenders named therein. Terms used herein and not otherwise
defined shall have the meanings assigned thereto in the Credit
Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Borrower, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Borrower in
accordance with Section 15.1 of the Agreement or based on any telephonic notice
made in accordance with the Agreement.
Facility Identification Number(s)
-----------------------------------------------
Customer/Account Name First Industrial, L.P.
-----------------------------------------------------------
Transfer Funds To First Industrial, L.P.
---------------------------------------------------------------
For Account No. 5266610 (Bank One)
-----------------------------------------------------------------
Reference/Attention To Jon Fedler
----------------------------------------------------------
Authorized Officer (Customer Representative) Date
------------------------
- --------------------------------------------------------------------------------
(Please Print) Signature
Bank Officer Name
- --------------------------------------------------------------------------------
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
-105-
106
EXHIBIT H
FORM OF COMPLIANCE CERTIFICATE
To: The Administrative Agent and the Lenders
who are parties to the Agreement described below
This Compliance Certificate is furnished pursuant to that certain
Amended and Restated Unsecured Revolving Credit Agreement, dated as of June 30,
2000 (as amended, modified, renewed or extended from time to time, the
"Agreement") among First Industrial, L.P. (the "Borrower"), First Industrial
Realty Trust, Inc. (the "General Partner"), Bank One, NA, individually and as
Administrative Agent, UBS AG, Stamford Branch, UBS Warburg LLC, as Syndication
Agent, Bank of America, N.A., individually and as Documentation Agent, and the
Lenders named therein. Unless otherwise defined herein, capitalized terms used
in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [Chief Financial Officer] [Chief Accounting
Officer] [Controller] of the [Borrower] [General Partner].
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the General Partner, the Borrower and their respective
Subsidiaries and Investment Affiliates during the accounting period covered by
the financial statements attached (or most recently delivered to the
Administrative Agent if none are attached).
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Material Adverse Financial Change, Event of Default or Default during or at
the end of the accounting period covered by the attached financial statements or
as of the date of this Compliance Certificate, except as set forth below.
4. Schedule I (if attached) attached hereto sets forth financial data
and computations and other information evidencing the General Partner's and the
Borrower's compliance with certain covenants of the Agreement, all of which
data, computations and information (or if no Schedule I is attached, the data,
computations and information contained in the most recent Schedule I attached to
a prior Compliance Certificate) are true, complete and correct in all material
respects.
5. The financial statements and reports referred to in Section 8.2(i),
8.2(iii) or 8.2(vii), as the case may be, of the Agreement which are delivered
concurrently with the delivery of this Compliance Certificate, if any, fairly
present in all material respects the consolidated financial condition and
operations of the General Partner, the Borrower and their respective
Subsidiaries at such date and the consolidated results of their operations for
the period then-ended, in accordance with GAAP applied consistently throughout
such period and with prior periods and correctly state the amounts of
Consolidated Total Indebtedness, Consolidated Secured Debt, Consolidated Senior
Unsecured Debt and the Values of all Unencumbered Assets as determined pursuant
to the Agreement.
-106-
107
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
The foregoing certifications, together with the computations and
information set forth in Schedule I hereto and the financial statements
delivered with this Compliance Certificate in support hereof, are made and
delivered this day of , 20 .
FIRST INDUSTRIAL, L.P.
By: FIRST INDUSTRIAL REALTY TRUST, INC.,
General Partner
By:
----------------------------------------
Print Name:
--------------------------------
Title:
-------------------------------------
-107-
108
SCHEDULE I
CALCULATION OF COVENANTS
[QUARTER]
1. Permitted Investments (Section 8.3)
- ------------------------------------------- --------------------------- --------------------- -------------------
Maximum
Percent of Percent of
Investment Implied Implied
---------- Capitalization Capitalization
Category (i.e. Book Value) Value Value
-------- ----- -----
- ------------------------------------------- --------------------------- --------------------- -------------------
(a) Unimproved Land 10%
- ------------------------------------------- --------------------------- --------------------- -------------------
(b) other property holdings (excluding 10%
cash, Cash Equivalents,
non-industrial Properties and
Indebtedness of any Subsidiary to
the Borrower)
- ------------------------------------------- --------------------------- --------------------- -------------------
(c) stock holdings other than in 10%
Subsidiaries
- ------------------------------------------- --------------------------- --------------------- -------------------
(d) mortgages 10%
- ------------------------------------------- --------------------------- --------------------- -------------------
(e) joint ventures and partnerships 10%
- ------------------------------------------- --------------------------- --------------------- -------------------
(f) total investments in 20% of Market Value
(a)-(e) Net Worth
- ------------------------------------------- --------------------------- --------------------- -------------------
(g) investments in Unimproved Land not 5%
adjacent to existing improvements
and not under active planning for
near term development as a
percentage of Implied
Capitalization Value
- ----------------------------------------- --------------------------- --------------------- ---------------------
(h) Identify any single industrial property in excess of 5% of Implied Capitalization Value (If none, insert
"none"):
--------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
2. Dividends (Section 8.13)
(a) Amount paid during most recent quarter
------------
(b) Amount paid during preceding three quarters
------------
(c) Funds From Operation during such four quarter period
------------
(i) GAAP net income for such period
------------
-108-
109
(ii) adjustments to GAAP net income per definition
of Funds From Operation (See Schedule)
------------
(iii) Funds From Operation
------------
TOTAL DIVIDEND PAY OUT RATIO [(a) PLUS (b), DIVIDED BY (c)(iii)]
Must be less than or equal to: 95%
3. EBITDA To Fixed Charges (Section 9.8(a))
(a) EBITDA for the quarter most recently ended
(i) Borrower and its Subsidiaries
------------
(ii) less GAAP income from Investment Affiliate
------------
(iii) Allocable EBITDA of Investment Affiliates
------------
(See Schedule)
(iv) EBITDA [(i) minus (ii) plus (iii)]
------------
(b) Interest income deducted from (a) (other than as to
------------
Defeased REMIC Debt)
(c) Debt Service for the quarter most recently ended
(i) GAAP interest expense (Borrower and Subsidiaries)
------------
(ii) Capitalized interest not covered by interest
reserve
------------
(iii) Interest on Guaranteed Obligations
------------
(iv) Allocable Interest (Investment Affiliates)
------------
(v) Scheduled principal payments (including
Investment Affiliates)
------------
(vi) Interest Expense [SUM OF (i)-(v)]
------------
(d) Preferred stock and partnership payments
------------
(e) Ground lease payments (to the extent not deducted
as an expense in calculating EBITDA)
------------
(f) Total Fixed Charges
------------
[c (vi) PLUS (d) PLUS (e)]
-109-
110
RATIO
[(a)(v) PLUS (b) DIVIDED BY (g)]:
Must be greater than or equal to: 1.75
4. Consolidated Total Indebtedness Ratio (Section 9.8(b))
(a) Consolidated Total Indebtedness (See Schedule)
------------
(b) Implied Capitalization Value
(i) Adjusted EBITDA for the quarter most recently
ended
------------
(ii) less Adjusted EBITDA from Preleased Assets
Under Development and from Projects acquired or
completed during quarter
------------
(iii) plus full quarter pro forma adjustment for
Projects acquired or completed during quarter
------------
(iv) annualized (x4)
------------
(v) 9.5%
(vi) (item (iv) divided by item (v))
------------
(vii) GAAP value of Preleased Assets Under Development
------------
(viii) GAAP value of those over 270 days in category
------------
(ix) 50% of item (vii) less item (viii)
------------
(x) lesser of 5% of Implied Capitalization Value
or $100,000,000
------------
(xi) lesser of item (ix) and item (x)
------------
(xii) Unrestricted Cash and Unrestricted Cash
Equivalents (including any cash on deposit
with a qualified intermediary and excluding
any cash or cash equivalents used to support
Defeased REMIC Debt)
------------
(xiii) first mortgage receivables
------------
(xiv) 10% of Implied Capitalization Value
------------
-110-
111
(xv) sum of (vi), (xi), (xii) and lesser of
------------
(xiii) or (xiv) is "Implied Capitalization Value"
CONSOLIDATED TOTAL INDEBTEDNESS RATIO
[(a) DIVIDED BY (b) EXPRESSED AS A PERCENTAGE]:
Must be less than or equal to: 55%
5. Floating Rate Indebtedness Ratio (Section 9.8(c))
(a) Total Indebtedness not bearing interest at
a fixed rate or not subject to approved
interest rate protection products
------------
(b) Implied Capitalization Value
[LINE (xv) IN ITEM 4(b) ABOVE]
------------
FLOATING RATE INDEBTEDNESS RATIO
[(a) DIVIDED BY (b) EXPRESSED AS A PERCENTAGE]:
Must be less than or equal to: 20%
6. Value of Unencumbered Assets Ratio (Section 9.8(d))
(a) Value of Unencumbered Assets
(i) Property Operating Income attributable to
Unencumbered Assets owned by Borrower and
wholly-owned Subsidiaries as of end of
quarter as appropriately annualized (including
pro forma Property Operating Income for entire
quarter for Unencumbered Assets acquired during
the quarter) (attach schedule noting Property
Operating Income for each Unencumbered Asset
as appropriately annualized)
------------
(ii) 9.5%
(ii) item (i) divided by item (ii) is "Value of
Unencumbered Assets"
------------
(b) Consolidated Senior Unsecured Debt (provide schedule of
such Debt)
------------
VALUE OF UNENCUMBERED ASSETS RATIO [(a) DIVIDED BY (b)]:
Must be greater than or equal to: 1.75
-111-
112
7. Property Operating Income Ratio (Section 9.8(e))
(a) Property Operating Income from all Unencumbered Assets
owned for any part of the preceding quarter
------------
(b) Debt Service on Consolidated Senior Unsecured Debt for
the preceding quarter
(i) Interest Expense (Borrower and Subsidiaries only)
------------
(ii) Regular principal payments (Borrower
and Subsidiaries)
------------
(iii) Debt Service [SUM OF (i) AND (ii)]
------------
UNENCUMBERED PROPERTY OPERATING INCOME RATIO [(a) DIVIDED BY (b)]
Must be greater than or equal to: 1.75
8. Consolidated Secured Debt and Senior Preferred Stock
to Implied Capitalization Value (Section 9.8(f))
(a) Consolidated Secured Debt
(i) Secured Indebtedness of Borrower and Subsidiaries
------------
(ii) Unsecured Indebtedness of Subsidiaries in
excess of $5,000,000
------------
(iii) Consolidated Secured Debt [SUM OF (i) PLUS (ii)]
------------
(b) Senior Preferred Stock (excluded after release of PS
Guaranty)
------------
(c) Implied Capitalization Value
------------
[LINE (xv) IN ITEM 4(b) ABOVE]
(d) (a) plus (b) divided by (c)
------------
Must be less than or equal to: 35%
9. Minimum Market Value Net Worth (Section 9.8(g))
(a) Market Value Net Worth
(i) Implied Capitalization Value
------------
[LINE (xv) IN ITEM 4(b) ABOVE]
(ii) Indebtedness of Borrower and Subsidiaries
------------
(iii) Market Value Net Worth [(i) MINUS (ii)]
------------
-112-
113
(b) $1,400,000,000
(c) product of .75 and net proceeds of stock and unit
offerings since June 30, 2000 ------------
(d) sum of (b) plus (c)
------------
(a)(iii) must be greater than or equal to (d)
10. Maximum Revenue From a Single Tenant (Section 9.11)
(a) 7.5% of Consolidated Operating Partnership's total rent
revenue as of last day of quarter, annualized
------------
(b) Identify any tenant for which rent revenue
(exclusive of tenant reimbursements) as
annualized exceeds amount shown in (a)
------------
11. Transfers of Unencumbered Assets (Section 9.5)
(a) Aggregate Value of all Unencumbered Assets transferred
during measuring period
------------
(b) Aggregate Value of Unencumbered Assets at start of
current measuring period (trailing 4 quarters)
------------
(c) Aggregate Value of Unencumbered Assets added during
current measuring period
------------
(d) 20% of sum of (b) and (c)
------------
(e) 25% of sum of (b) and (c)
------------
(f) Aggregate Value of Unencumbered Assets Sold in
Exit Markets during current measuring period
------------
(g) Aggregate Value of Unencumbered Assets Sold
during current measuring period ------------
(h) Item (f) divided by sum of (b) and (c)
If Item (h) is less than or equal to 5%, Item (a) must be less than or equal to
Item (d). If Item (h) is greater than 5%, Item (a) must be less than or equal to
Item (e).
NOTE: To the extent of any inconsistency between the form
of this Compliance Certificate and the terms of the
Agreement, the terms of the Agreement shall prevail.
-113-
114
EXHIBIT I
SCOPE OF WORK FOR ENVIRONMENTAL INVESTIGATIONS
-114-
115
EXHIBIT J
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
(the "Assignor") and (the "Assignee") is dated as of ,
20 . The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to an Amended and
Restated Unsecured Revolving Credit Agreement (which, as it may be amended,
modified, renewed or extended from time to time is herein called the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement and the other Loan Documents. The aggregate
Commitment (or Loans, if the applicable Commitment has been terminated)
purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two (2) Business Days (or such shorter period agreed to by the
Administrative Agent) after a Notice of Assignment substantially in the form of
Exhibit "I" attached hereto has been delivered to the Agent. In no event will
the Effective Date occur if the payments required to be made by the Assignee to
the Assignor on the Effective Date under Sections 4 and 5 hereof are not made on
the proposed Effective Date, unless otherwise agreed to in writing by Assignor
and Assignee. The Assignor will notify the Assignee of the proposed Effective
Date no later than the Business Day prior to the proposed Effective Date. As of
the Effective Date, (i) the Assignee shall have the rights and obligations of a
Lender under the Loan Documents with respect to the rights and obligations
assigned to the Assignee hereunder and (ii) the Assignor shall relinquish its
rights and be released from its corresponding obligations under the Loan
Documents with respect to the rights and obligations assigned to the Assignee
hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee shall advance funds directly to the Administrative Agent with respect
to all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In consideration for the sale and
assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on the
Effective Date, an amount equal to the principal amount of the portion of all
Adjusted Prime Rate Loans assigned to the Assignee hereunder and (ii) with
respect to each ratable LIBOR Advance and Competitive Bid Loan made by the
Assignor and assigned to the Assignee hereunder which is
-115-
116
outstanding on the Effective Date, (a) on the last day of the Interest Period
therefor or (b) on such earlier date agreed to by the Assignor and the Assignee
or (c) on the date on which any such Loan either becomes due (by acceleration or
otherwise) or is prepaid (the date as described in the foregoing clauses (a),
(b) or (c) being hereinafter referred to as the "Fixed Due Date"), the Assignee
shall pay the Assignor an amount equal to the principal amount of the portion of
such Loan assigned to the Assignee which is outstanding on the Fixed Due Date.
If the Assignor and the Assignee agree that the applicable Fixed Due Date for
such Loan shall be the Effective Date, they shall agree, solely for purposes of
dividing interest paid by the Borrower on such Loan, to an alternate interest
rate applicable to the portion of such Loan assigned hereunder for the period
from the Effective Date to the end of the related Interest Period (the "Agreed
Interest Rate") and any interest received by the Assignee in excess of the
Agreed Interest Rate, with respect to such Loan for such period, shall be
remitted to the Assignor. In the event a prepayment of any Loan which is
existing on the Effective Date and assigned by the Assignor to the Assignee
hereunder occurs after the Effective Date but before the applicable Fixed Due
Date, the Assignee shall remit to the Assignor any excess of the funding
indemnification amount paid by the Borrower under Section 4.4 of the Credit
Agreement an account of such prepayment with respect to the portion of such Loan
assigned to the Assignee hereunder over the amount which would have been paid if
such prepayment amount were calculated based on the Agreed Interest Rate and
only covered the portion of the Interest Period after the Effective Date. The
Assignee will promptly remit to the Assignor (i) the portion of any principal
payments assigned hereunder and received from the Administrative Agent with
respect to any such Loan prior to its Fixed Due Date and (ii) any amounts of
interest on Loans and fees received from the Administrative Agent which relate
to the portion of the Loans assigned to the Assignee hereunder for periods prior
to the Effective Date, in the case of ratable Adjusted Prime Rate Loans or Fees,
or the Fixed Due Date, in the case of LIBOR Loans and Competitive Bid Loans, and
not previously paid by the Assignee to the Assignor.]* In the event that either
party hereto receives any payment to which the other party hereto is entitled
under this Assignment Agreement, then the party receiving such amount shall
promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or Commitment Fees or Facility
Fees is made under the Credit Agreement with respect to the amounts assigned to
the Assignee hereunder (other than a payment of interest or Commitment Fees or
Facility Fees attributable to the period prior to the Effective Date or, in the
case of LIBOR Loans and Competitive Bid Loans, the Payment Date, which the
Assignee is obligated to deliver to the Assignor pursuant to Section 4 hereof).
The amount of such fee shall be the difference between (i) the interest or fee,
as applicable, paid with respect to the amounts assigned to the Assignee
hereunder and (ii) the interest or fee, as applicable, which would have been
paid with respect to the amounts assigned to the Assignee hereunder if each
interest rate was calculated at the rate of % rather than the actual
percentage used to calculate the interest rate paid by the Borrower or if the
Commitment Fee or Facility Fee was calculated at the rate of % rather than the
actual percentage used to calculate the Commitment Fee or Facility Fee paid by
the borrower, as applicable. In addition, the Assignee agrees to pay % of the
fee required to be paid to the Agent in connection with this Assignment
Agreement. [THIS SENTENCE CAN BE REVISED APPROPRIATELY BASED ON HOW THE FEE IS
BEING PAID.]
-116-
117
*EACH ASSIGNOR MAY INSERT ITS STANDARD PROVISIONS IN LIEU OF THE PAYMENT TERMS
INCLUDED IN SECTIONS 4 AND 5 OF THIS EXHIBIT.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, its Subsidiaries or Investment
Affiliates, (vi) the validity, enforceability, perfection, priority, condition,
value or sufficiency of any collateral securing or purporting to secure the
Loans or (vii) any mistake, error of judgment, or action taken or omitted to be
taken in connection with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement and the other Loan Documents,
together with copies of the financial statements requested by the Assignee and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment Agreement, (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Documentation Agent, the Assignor or any other Lender and based on
such documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (iii) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, (iv)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (v) agrees that its payment instructions and notice
instructions are as set forth in the attachment to Schedule 1, (vi) confirms
that none of the funds, monies, assets or other consideration being used to make
the purchase and assumption hereunder are "plan assets" as defined under ERISA
and that its rights, benefits and interests in and under the Loan Documents will
not be "plan assets" under ERISA, [AND (vii) ATTACHES THE FORMS PRESCRIBED BY
THE INTERNAL REVENUE SERVICE OF THE UNITED STATES CERTIFYING THAT THE ASSIGNEE
IS ENTITLED TO RECEIVE PAYMENTS UNDER THE LOAN DOCUMENTS WITHOUT DEDUCTION OR
WITHHOLDING OF ANY UNITED STATES FEDERAL INCOME TAXES].**
**TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF THE
UNITED STATES, OR A STATE THEREOF.
-117-
118
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 13.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under Sections 4, 5 and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
-118-
119
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
--------------------------------------------
Title:
-----------------------------------------
[NAME OF ASSIGNEE]
By:
--------------------------------------------
Title:
-----------------------------------------
-119-
120
SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: , 20
------------- --
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
(Loans)* under
Credit Agreement $
------------
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** %
------------
4. Amount of Assignee's Commitment (Loan Amount)*
Purchased under this Assignment Agreement: $
------------
5. Amount of Assignor's Commitment (Loan Amount)
After Purchase under this Assignment Agreement
------------
6. Proposed Effective Date:
------------
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
-120-
121
ATTACHMENT TO SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address and account information for the Assignor and the Assignee
-121-
122
EXHIBIT "I" TO
ASSIGNMENT AGREEMENT
NOTICE OF ASSIGNMENT
, 20
------------- --
To: [NAME OF ADMINISTRATIVE AGENT]
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Amended and Restated Unsecured Revolving Credit
Agreement (the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
the Administrative Agent pursuant to Section 13.3.1 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of , 20 (the "Assignment"), pursuant to which,
among other things, the Assignor has sold, assigned, delegated and transferred
to the Assignee, and the Assignee has purchased, accepted and assumed from the
Assignor the percentage interest specified in Item 3 of Schedule 1 of all
outstandings, rights and obligations under the Credit Agreement. From and after
such purchase, the Assignee's Commitment shall be the amount specified in Item 4
of Schedule 1 and the Assignor's Commitment shall be the amount specified in
Item 5 of Schedule 1. The Effective Date of the Assignment shall be the later of
the date specified in Item 5 of Schedule 1 or two (2) Business Days (or such
shorter period as agreed to by the Administrative Agent) after this Notice of
Assignment and any fee required by Section 13.3.1 of the Credit Agreement have
been delivered to the Administrative Agent, provided that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee or set forth in Section 13 of the Credit Agreement has not been
satisfied.
4. The Assignor and the Assignee hereby give to the Administrative
Agent notice of the assignment and delegation referred to herein. The Assignor
will confer with the Administrative Agent before the date specified in Item 6 of
Schedule 1 to determine if the Assignment Agreement will become effective on
such date pursuant to Section 3 hereof, and will confer with the Administrative
Agent to determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent if the Assignment
Agreement does not become effective on any proposed Effective Date as a result
of the failure to satisfy the conditions precedent agreed to by the Assignor and
the Assignee. At
-122-
123
the request of the Administrative Agent, the Assignor will give the
Administrative Agent written confirmation of the satisfaction of the conditions
precedent.
5. The Assignor or the Assignee shall pay to the Administrative Agent
on or before the Effective Date the processing fee of $3,500 required by Section
13.3.1 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor and the
Assignee request and direct that the Administrative Agent prepare and cause the
Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Administrative Agent the original Note
received by it from the Borrower upon its receipt of a new Note in the
appropriate amount.
7. The Assignee advises the Administrative Agent that notice and
payment instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
9. The Assignee authorizes the Administrative Agent to act as its agent
under the Loan Documents in accordance with the terms thereof. The Assignee
acknowledges that the Administrative Agent has no duty to supply information
with respect to the Borrower or the Loan Documents to the Assignee until the
Assignee becomes a party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
------------------------------ ---------------------------------
Title: Title:
--------------------------- ------------------------------
ACKNOWLEDGED AND CONSENTED TO
BY BANK ONE, NA,
as Administrative Agent
By:
------------------------------
Title:
---------------------------
[ATTACH PHOTOCOPY OF SCHEDULE 1 TO ASSIGNMENT]
-123-
124
EXHIBIT K
FORM OF DESIGNATION AGREEMENT
Dated , 20
-------------- --
Reference is made to the Amended and Restated Unsecured Revolving
Credit Agreement dated as of June 30, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") among First
Industrial, L.P., a Delaware limited partnership (the "Borrower"), First
Industrial Realty Trust, Inc., the Lenders parties thereto, UBS Warburg LLC, as
Syndication Agent, Bank of America, N.A., as Documentation Agent and Bank One,
NA, as Administrative Agent (the "Administrative Agent") for the Lenders. Terms
defined in the Credit Agreement are used herein with the same meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNATED LENDER] (the
"Designee"), the Administrative Agent and the Borrower agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Competitive Bid Loans pursuant
to Section 2.16 of the Credit Agreement. Any assignment by Designor to Designee
of its rights to make a Competitive Bid Loan pursuant to such Section 2.16 shall
be effective at the time of the funding for such Competitive Bid Loan and not
before such time.
2. Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or General Partner or
the performance or observance by the Borrower or General Partner of any of their
respective obligations under any Loan Document or any other instrument or
document furnished pursuant thereto. (It is acknowledged that the Designor may
make representations and warranties of the type described above in other
agreements to which the Designor is a party).
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to in
Section 8.2 of the Credit Agreement and such other documents and information as
it has deemed appropriate to make its own independent credit analysis and
decision to enter into this Designation Agreement, (b) agrees that it will,
independently and without reliance upon the Administrative Agent, the Designor
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under any Loan Document; (c) confirms that it is a Designated
Lender; (d) appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers and discretion under any Loan
Document as are delegated to the Administrative Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto,
and (e) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of any Loan Document are required to be performed
by it as a Lender.
-124-
125
4. The Designee hereby appoints the Designor as the Designee's agent
and attorney in fact, and grants to the Designor an irrevocable power of
attorney, to deliver and receive all communications and notices under the Credit
Agreement and other Loan Documents and to exercise on the Designee's behalf all
rights to vote and to grant and make approvals, waivers, consents or amendment
to or under the Credit Agreement or other Loan Documents. Any document executed
by the Designor on the Designee's behalf in connection with the Credit Agreement
or other Loan Documents shall be binding on the Designee. The Borrower, the
Administrative Agent and each of the Lenders may rely on and are beneficiaries
of the preceding provisions.
5. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent and the Borrower. The
effective date for this Designation Agreement (the "Effective Date") shall be
the date of acceptance hereof by the Administrative Agent and the Borrower,
unless otherwise specified on the signature page thereto.
6. The Administrative Agent shall not institute or join any other
person in instituting against the Designee any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under any
federal or state bankruptcy or similar law, for one year and a day after the
Maturity Date.
7. The Borrower shall not institute or join any other person in
instituting against the Designee any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and a day after the Maturity Date.
8. The Designor unconditionally agrees to pay or reimburse the Designee
and save the Designee harmless against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designee, in its capacity as such, in
any way relating to or arising out of this Designation Agreement or any other
Loan Documents or any action taken or omitted by the Designee hereunder or
thereunder, provided that the Designor shall not be liable for any portion of
such liabilities, obligations, losses, damage, penalties, actions, judgments,
suits, costs, expenses or disbursements if the same results from the Designee's
gross negligence or willful misconduct.
9. Upon such acceptance and recording of this Designation Agreement by
the Borrower and the Administrative Agent, as of the Effective Date, the
Designee shall be entitled to the benefits of the Credit Agreement with a right
to fund and receive payment of the principal and interest on Competitive Bid
Loans pursuant to Section 2.16 of the Credit Agreement and otherwise with the
rights and obligations of a Participant of Designor thereunder.
10. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without reference to the
provisions thereof regarding conflicts of law.
-125-
126
11. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as of delivery of a manually executed
counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee, intending to be
legally bound, have caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above written.
Effective Date9 , , 20
-------------------- ---- --
[NAME OF DESIGNOR], as Designor
By:
---------------------------------
Title:
---------------------------------
[NAME OF DESIGNATED LENDER],
as Designee
By:
---------------------------------
Title:
---------------------------------
Applicable Lending Office (and
address for notices):
[ADDRESS]
Accepted this day of , 20
---- --------------- --
[AGENT], as Administrative Agent [FIRST INDUSTRIAL, L.P.]
By: FIRST INDUSTRIAL REALTY
TRUST, INC., its general partner
By: By:
--------------------------------- ------------------------------
Title: Title:
------------------------------ ---------------------------
- ------------------------
9 This date should be no earlier than five Business Days after the
delivery of this Designation Agreement to the Administrative Agent.
-126-
127
EXHIBIT L
AMENDMENT TO AMENDED AND RESTATED
UNSECURED REVOLVING CREDIT AGREEMENT
This Amendment to the Amended and Restated Unsecured Revolving Credit
Agreement (the "Agreement") is made as of , , by and among First
Industrial, L.P., a Delaware limited partnership ("Borrower") First Industrial
Realty Trust, Inc., Bank One, NA, individually and as "Administrative Agent,"
and one or more new or existing "Lenders" shown on the signature pages hereof.
RECITALS
A. Borrower, Administrative Agent and certain other Lenders have entered into an
Amended and Restated Credit Agreement dated as of June 30, 2000 (as amended, the
"Credit Agreement"). All capitalized terms used herein and not otherwise defined
shall have the meanings given to them in the Credit Agreement.
B. Pursuant to the terms of the Credit Agreement, the Lenders initially agreed
to provide Borrower with a revolving credit facility in an aggregate principal
amount of up to $ . The Borrower, the Administrative Agent and the
Lenders now desire to amend the Credit Agreement in order to, among other things
(i) increase the Aggregate Commitment to $ ; and (ii) admit
[name of new banks] as "Lenders" under the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. The foregoing Recitals to this Amendment hereby are incorporated into and
made part of this Amendment.
2. From and after , (the "Effective Date") (i) [name of new banks]
shall be considered as "Lenders" under the Credit Agreement and the Loan
Documents, and (ii) [name of existing lenders] shall each be deemed to have
increased its Commitment to the amount shown next to their respective signatures
on the signature pages of this Amendment, each having a Commitment in the amount
shown next to their respective signatures on the signature pages of this
Amendment. The Borrower shall, on or before the Effective Date, execute and
deliver to each of such new or existing Lenders a new or amended and restated
Note in the amount of such Commitment (and in the case of a new Lender, a
Competitive Bid Note as well).
3. From and after the Effective Date, the Aggregate Commitment shall equal
Million Dollars ($ ,000,000).
-127-
128
4. For purposes of Section 15.1 of the Credit Agreement (Giving Notice), the
address(es) and facsimile number(s) for [name of new banks] shall be as
specified below their respective signature(s) on the signature pages of this
Amendment.
5. The Borrower hereby represents and warrants that, as of the Effective Date,
there is no Default or Event of Default, the representations and warranties
contained in Articles VI and VII of the Credit Agreement are true and correct as
of such and the Borrower has no offsets or claims against any of the Lenders.
6. As expressly modified as provided herein, the Credit Agreement shall continue
in full force and effect.
7. This Amendment may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Amendment by signing any such counterpart.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of
the date first written above.
FIRST INDUSTRIAL, L.P.
By: FIRST INDUSTRIAL REALTY TRUST, INC., its general partner
By:
Print Name:
Title:
First Industrial, L.P.
c/o First Industrial Realty Trust, Inc.
311 South Wacker Drive, Suite 400
Chicago, Illinois 60606
Attention: Mr. Scott Musil
Facsimile: (312) 895-9380
FIRST INDUSTRIAL REALTY TRUST, INC.
By:
Print Name:
Title:
-128-
129
BANK ONE, NA, Individually and as Administrative Agent
By:
Print Name:
Title:
1 Bank One Plaza
Chicago, Illinois 60670
Facsimile: 312/732-1117
Attention: Corporate Real Estate
Amount of Commitment: $
[NAME OF NEW LENDER]
By:
Print Name:
Title:
[Address of New Lender]
Phone:
Facsimile:
Attention:
-129-
130
SCHEDULE 2.2
UPFRONT FEES
Lender's Commitment Amount Lender's Upfront Fee
(based on Commitment Offered) (applied to final allocated Commitment)
---------------------------------- ---------------------------------------
$40,000,000 0.65%
$35,000,000 or more, but less than 0.60%
$40,000,000
$25,000,000 or more, but less than 0.50%
$35,000,000
Less than $25,00,000 0.40%
-130-
131
SCHEDULE 6.9
LITIGATION (BORROWER)
NONE
-131-
132
SCHEDULE 6.19
ENVIRONMENTAL COMPLIANCE
(see attached)
-132-
133
SCHEDULE 6.24
TRADE NAMES
First Industrial (Michigan), Limited Partnership
First Industrial (Minnesota), Limited Partnership
First Industrial (Tennessee), L.P.
First Industrial Realty, Inc.
First Industrial (Alabama), Limited Partnership
First Industrial, Limited Partnership
First Industrial Financing Partnership (Alabama), Limited Partnership
First Industrial Financing Partnership, Limited Partnership
First Industrial Financing Partnership (Minnesota), Limited Partnership
First Industrial Financial Partnership (Wisconsin), Limited Partnership
First Industrial MP, L.P. dba First Industrial Mortgage Partnership, L.P.
-133-
134
SCHEDULE 6.25
SUBSIDIARIES (BORROWER)
First Industrial Financing Partnership, L.P., a Delaware limited partnership*
First Industrial Pennsylvania, L.P., a Delaware limited partnership*
First Industrial Harrisburg, L.P., a Delaware limited partnership*
First Industrial Securities, L.P., a Delaware limited partnership*
First Industrial Mortgage Partnership, L.P., a Delaware limited partnership*
First Industrial Indianapolis Partnership, L.P., a Delaware limited partnership*
First Industrial Development Services, L.P., a Delaware limited partnership*
TK-SV, Ltd.*
* Borrower owns 99% limited partnership interest in this entity.
-134-
135
SCHEDULE 6.26
UNENCUMBERED ASSETS AS OF MARCH 31, 2000
FIRST INDUSTRIAL REALTY TRUST, INC.
SCHEDULE OF UNENCUMBERED ASSETS
@ 3/31/00
ACQUIRED/ YEAR BUILT/ BUILDING LAND AREA # OF GLA
BUILDING ADDRESS LOCATION DEVELOPED RENOVATED TYPE (ACRES) BUILDINGS SQ FT
- -------------------------- --------------------- ------------ ------------ ----------------- ---------- ----- ----------
ATLANTA
-------
1650 GA Highway 155 McDonough, GA Acquired 1991 Bulk Warehouse 12.80 1 228,400
14101 Industrial Park
Boulevard Covington, GA Acquired 1984 Light Industrial 9.25 1 92,160
801-804 Blacklawn Road Conyers, GA Acquired 1982 Bulk Warehouse 6.67 1 111,185
1665 Dogwood Drive Conyers, GA Acquired 1973 Manufacturing 9.46 1 198,000
1715 Dogwood Drive Conyers, GA Acquired 1973 Manufacturing 4.61 1 100,000
11235 Harland Drive Covington, GA Acquired 1988 Light Industrial 5.39 1 32,361
700 Westlake Parkway Atlanta, GA Acquired 1990 Light Industrial 3.50 1 56,400
800 Westlake Parkway Atlanta, GA Acquired 1991 Bulk Warehouse 7.40 1 132,400
4050 Southmeadow Parkway Atlanta, GA Acquired 1991 Reg. Warehouse 6.60 1 87,328
4051 Southmeadow Parkway Atlanta, GA Acquired 1989 Bulk Warehouse 11.20 1 171,671
4071 Southmeadow Parkway Atlanta, GA Acquired 1991 Bulk Warehouse 17.80 1 209,918
4081 Southmeadow Parkway Atlanta, GA Acquired 1989 Bulk Warehouse 12.83 1 254,172
1875 Rockdale Industrial
Blvd. Conyers, GA Acquired 1966 Manufacturing 5.70 1 121,600
3312 N. Berkeley Lake Road Duluth, GA Acquired 1969 Bulk Warehouse 52.11 1 1,040,296
370 Great Southwest Parkway Atlanta, GA Acquired 1986 Light Industrial 8.06 2 150,536
3495 Bankhead Atlanta, GA Acquired 1986 Bulk Warehouse 20.50 2 408,819
955 Cobb Place Kennesaw, GA Acquired 1991 Reg. Warehouse 8.73 1 97,518
6105 Boatroack Atlanta, GA Acquired 1972 Light Industrial 1.79 1 32,000
1640 Sands Place Marietta, GA Acquired 1977 Light Industrial 1.97 1 35,425
7000 Highland Parkway Smyrna, GA Acquired 1998 Bulk Warehouse 10.00 1 123,808
2084 Lake Industrial Court Conyers, GA Acquired 1998 Bulk Warehouse 13.74 1 180,000
1 1005 Sigman Road Conyers, GA Acquired 1986 Bulk Warehouse 9.12 1 127,338
1 2050 East Park Drive Conyers, GA Acquired 1998 Reg. Warehouse 5.46 1 90,289
1003 Sigman Road Conyers, GA Acquired 1996 Bulk Warehouse 11.30 1 123,457
1 201 Greenwood McDonough, GA Developed 1999 Bulk Warehouse 39.00 1 800,000
------- ----------------
Subtotal or Average 294.99 27 5,005,081
------- ----------------
BALTIMORE
---------
2 3431 Benson Baltimore, MD Acquired 1988 Light Industrial 3.48 1 60,227
3 1801 Portal Baltimore, MD Acquired 1987 Light Industrial 3.72 1 57,600
3 1811 Portal Baltimore, MD Acquired 1987 Light Industrial 3.32 1 60,000
3 1831 Portal Baltimore, MD Acquired 1990 Light Industrial 3.18 1 46,522
4 1821 Portal Baltimore, MD Acquired 1986 Light Industrial 4.63 1 86,234
1 6615 Tributary Baltimore, MD Acquired 1987 Light Industrial 4.36 1 65,860
1 7340 Executive Frederick, MD Acquired 1988 R&D/Flex 9.38 1 78,418
5 4845 Governers Way Frederick, MD Acquired 1988 Light Industrial 5.47 1 83,064
6 8900 Yellow Brick Road Baltimore, MD Acquired 1982 Light Industrial 5.80 1 60,000
7 7476 New Ridge Hanover, MD Acquired 1987 Light Industrial 18.00 1 71,866
8 8779 Greenwood Place Savage, MD Acquired 1978 Bulk Warehouse 8.00 1 142,140
------- ----------------
Subtotal or Average 69.34 11 811,931
------- ----------------
BATON ROUGE
-----------
11200 Industiplex Blvd Baton Rouge, LA Acquired 1986 Light Industrial 3.00 1 42,355
11441 Industriplex Blvd Baton Rouge, LA Acquired 1987 Light Industrial 2.40 1 35,596
11301 Industriplex Blvd Baton Rouge, LA Acquired 1985 Light Industrial 2.50 1 38,396
6565 Exchequer Drive Baton Rouge, LA Acquired 1986 Bulk Warehouse 5.30 1 108,800
------- ----------------
Subtotal or Average 13.20 4 225,147
------- ----------------
CENTRAL PENNSYLVANIA
--------------------
1 1214-B Freedom Road Cranberry Township, PA Acquired 1982 Reg. Warehouse 5.99 1 32,779
1 401 Russell Drive Middletown, PA Developed 1990 Reg. Warehouse 5.20 1 52,800
1 2700 Commerce Drive Middletown, PA Developed 1990 Reg. Warehouse 3.60 1 32,000
1 2701 Commerce Drive Middletown, PA Developed 1989 Light Industrial 6.40 1 48,000
1 2780 Commerce Drive Middletown, PA Developed 1989 Light Industrial 2.00 1 21,600
1 7125 Grayson Road Harrisburg, PA Acquired 1991 Bulk Warehouse 17.17 1 300,000
136
1 7253 Grayson Road Harrisburg, PA Acquired 1990 Bulk Warehouse 12.42 1 198,386
9 400 First Street Middletown, PA Acquired 1963/1996 Bulk Warehouse 14.88 1 167,500
9 401 First Street Middletown, PA Acquired 1963/1996 Bulk Warehouse 43.55 1 490,140
9 500 Industrial Lane Middletown, PA Acquired 1970/1996 Bulk Warehouse 10.29 1 115,890
9 600 Hunter Lane Middletown, PA Developed 1996 Bulk Warehouse 14.77 1 216,387
9 300 Hunter Lane Middletown, PA Developed 1996 Bulk Warehouse 16.71 1 321,333
9 Fruehauf Building #6 Middletown, PA Developed 1998 Bulk Warehouse 0.00 1 242,824
10 3380 Susquehanna Trail
North York, PA Acquired 1990 Bulk Warehouse 10.00 1 112,500
10 495 East Locust Lane York, PA Acquired 1993 Bulk Warehouse 15.00 1 200,000
10 350 Old Silver Springs
Road Mechanicsburg, PA Acquired 1968 Light Industrial 20.00 1 264,120
10 4500 Westport Drive Mechanicsburg, PA Acquired 1996 Bulk Warehouse 11.20 1 178,600
10 10 Weaver Road Denver, PA Acquired 1974 Bulk Warehouse 85.00 1 623,832
-------- ------------------
Subtotal or Average 294.18 18 3,618,691
-------- ------------------
CHICAGO
-------
2300 Hammond Drive Schaumburg, IL Acquired 1970 Light Industrial 4.13 1 77,000
6500 North Lincoln Avenue Lincolnwood, IL Acquired 1965/88 Light Industrial 2.52 1 63,050
3600 West Pratt Avenue Lincolnwood, IL Acquired 1953/88 Bulk Warehouse 6.35 1 205,481
917 North Shore Drive Lake Bluff, IL Acquired 1974 Light Industrial 4.27 1 84,575
6750 South Sayre Avenue Bedford Park, IL Acquired 1975 Light Industrial 2.51 1 63,383
85 Slawin Court Mount Prospect, IL Acquired 1992 R&D/Flex 3.71 1 38,150
2300 Windsor Court Addison, IL Acquired 1986 Bulk Warehouse 6.80 1 105,100
3505 Thayer Court Aurora, IL Acquired 1989 Light Industrial 4.60 1 64,220
3600 Thayer Court Aurora, IL Acquired 1989 Light Industrial 6.80 1 66,958
736-776 Industrial Drive Elmhurst, IL Acquired 1975 Light Industrial 3.79 1 80,520
1 480 East 14th St. Chicago, Heights, IL Acquired 1958 Bulk Warehouse 11.66 1 284,135
305-311 Era Drive Northbrook, IL Acquired 1978 Light Industrial 1.82 1 27,549
700-714 Landwehr Road Northbrook, IL Acquired 1978 Light Industrial 1.99 1 41,835
4330 South Racine Avenue Chicago, IL Acquired 1978 Manufacturing 5.57 1 168,000
13040 S. Crawford Ave. Alsip, IL Acquired 1976 Bulk Warehouse 15.12 1 400,076
12241 Melrose Street Franklin Park, IL Acquired 1969 Light Industrial 2.47 1 77,301
12301-12325 S Laramie Ave Alsip, IL Acquired 1975 Bulk Warehouse 8.83 1 204,586
6300 W. Howard Street Niles, IL Acquired 1956/1964 Manufacturing 19.50 1 364,000
301 Hintz Wheeling, IL Acquired 1960 Manufacturing 2.51 1 43,636
301 Alice Wheeling, IL Acquired 1965 Light Industrial 2.88 1 65,450
410 W 169th St South Holland, IL Acquired 1974 Bulk Warehouse 6.40 1 151,436
1001 Commerce Court Buffalo Grove, IL Acquired 1989 Light Industrial 5.37 1 84,956
11939 S Central Avenue Alsip, IL Acquired 1972 Bulk Warehouse 12.60 1 320,171
405 East Shawmut LaGrange, IL Acquired 1965 Light Industrial 3.39 1 59,075
5555 West 70th Place Bedford Park, IL Acquired 1973 Manufacturing 2.50 1 41,531
3200-3250 South St. Louis Chicago, IL Acquired 1968 Light Industrial 8.66 2 74,685
3110-3130 South St. Louis Chicago, IL Acquired 1968 Light Industrial 4.00 1 23,254
7301 South Hamlin Chicago, IL Acquired 1975/1986 Light Industrial 1.49 1 56,017
7401 South Pulaski Chicago, IL Acquired 1975/1986 Bulk Warehouse 5.36 1 213,670
3900 West 74th Street Chicago, IL Acquired 1975/1986 Reg. Warehouse 2.13 1 66,000
7501 S. Pulaski Chicago, IL Acquired 1975/1986 Bulk Warehouse 3.88 1 159,728
385 Fenton Lane West Chicago, IL Acquired 1990 Bulk Warehouse 6.79 1 182,000
335 Crossroad Parkway Bolingbrook, IL Acquired 1996 Bulk Warehouse 12.86 1 288,000
10435 Seymour Avenue Franklin Park, IL Acquired 1967 Light Industrial 1.85 1 53,500
905 Paramount Batavia, IL Acquired 1977 Light Industrial 2.60 1 60,000
1005 Paramount Batavia, IL Acquired 1978 Light Industrial 2.50 1 64,574
34-45 Lake Street Northlake, IL Acquired 1978 Bulk Warehouse 5.71 1 124,804
2120-24 Roberts Broadview, IL Acquired 1960 Light Industrial 2.30 1 60,009
4309 South Morgan Street Chicago, IL Acquired 1975 Manufacturing 6.91 1 200,000
405-17 University Drive Arlington Hts., IL Acquired 1977 Light Industrial 2.42 1 56,400
------- -----------------
Subtotal or Average 217.55 41 4,864,815
------- -----------------
CINCINNATI
----------
4860 Duff Drive Cincinnati, OH Acquired 1979 Light Industrial 1.02 1 15,986
4866 Duff Drive Cincinnati, OH Acquired 1979 Light Industrial 1.02 1 16,000
4884 Duff Drive Cincinnati, OH Acquired 1979 Light Industrial 1.59 1 25,000
4890 Duff Drive Cincinnati, OH Acquired 1979 Light Industrial 1.59 1 25,018
636-9643 Interocean Drive Cincinnati, OH Acquired 1983 Light Industrial 4.13 1 29,371
12072 Best Place Springboro, OH Acquired 1984 Bulk Warehouse 7.80 1 112,500
901 Pleasant Valley Drive Springboro, OH Acquired 1984 Light Industrial 7.70 1 69,220
4440 Mulhauser Road Cincinnati, OH Developed 1999 Bulk Warehouse 15.26 1 240,000
------- -------------------
Subtotal or Average 40.11 8 333,095
------- -------------------
CLEVELAND
---------
6675 Parkland Blvd Salon, OH Acquired 1991 R&D/Flex 10.41 1 102,500
21510-21600 Alexander
Road (af) Oakwood, OH Acquired 1985 Light Industrial 5.70 3 106,721
-2-
137
5405 & 5505 Valley Belt Independence, OH Acquired 1983 Light Industrial 6.23 2 62,395
Road (ad)
-------- ----------------------
Subtotal or Average 22.34 6 271,616
-------- ----------------------
COLUMBUS
6911 Americana Parkway Columbus, OH Acquired 1980 Light Industrial 4.05 1 57,255
3800 Lockbourne Columbus, OH Acquired 1986 Bulk Warehouse 22.12 1 404,734
Industrial Pkwy
3880 Groveport Road Obetz, OH Acquired 1986 Bulk Warehouse 43.41 1 705,600
1819 North Walcutt Road Columbus, OH Acquired 1973 Bulk Warehouse 11.33 1 243,000
4300 Cemetery Road Hillard, OH Acquired 1968 Manufacturing 62.71 1 255,470
4115 Leap Road Hillard, OH Acquired 1977 R&D/Flex 18.66 2 217,612
3300 Lockbourne Columbus, OH Acquired 1964 Bulk Warehouse 17.00 1 300,200
-------- ----------------------
Subtotal or Average 179.28 8 2,183,871
-------- ----------------------
DALLAS
1275-1281 Roundtable Drive Dallas, TX Acquired 1966 Light Industrial 1.75 1 30,642
2406-2416 Walnut Ridge Dallas, TX Acquired 1978 Light Industrial 1.76 1 44,000
12750 Perimiter Drive Dallas, TX Acquired 1979 Bulk Warehouse 6.72 1 178,200
1324-1343 Roundtable Drive Dallas, TX Acquired 1972 Light Industrial 2.09 1 47,000
1405-1409 Avenue II East Grand Prairie, TX Acquired 1969 Light Industrial 1.79 1 36,000
2651-2677 Manana Dallas, TX Acquired 1966 Light Industrial 2.55 1 82,229
2401-2419 Walnut Ridge Dallas, TX Acquired 1978 Light Industrial 1.20 1 30,000
4248-4252 Simonton Farmers Ranch, TX Acquired 1973 Bulk Warehouse 8.18 1 205,693
900-906 Great Southwest Pkwy Arlington, TX Acquired 1972 Light Industrial 3.20 1 69,761
2179 Shiloh Road Garland, TX Acquired 1982 Reg. Warehouse 3.63 1 65,700
2159 Shiloh Road Garland, TX Acquired 1982 R&D/Flex 1.15 1 20,800
2701 Shiloh Road Garland, TX Acquired 1981 Bulk Warehouse 8.20 1 214,650
12784 Perimeter Drive Dallas, TX Acquired 1981 Light Industrial 4.57 3 95,671
3000 West Commerce Dallas, TX Acquired 1980 Manufacturing 11.23 1 128,478
3030 Hansboro Dallas, TX Acquired 1971 Bulk Warehouse 3.71 1 100,000
5222 Cockrell Hill Dallas, TX Acquired 1973 Manufacturing 4.79 1 96,506
405-407 113th Arlington, TX Acquired 1969 Light Industrial 2.75 1 60,000
816 111th Street Arlington, TX Acquired 1972 Light Industrial 2.89 1 65,000
1017-25 Jacksboro Highway Fort Worth, TX Acquired 1970 Light Industrial 1.49 1 30,000
7341 Dogwood Park Richland Hills, TX Acquired 1973 Light Industrial 1.09 1 20,000
7427 Dogwood Park Richland Hills, TX Acquired 1973 Light Industrial 1.60 1 27,500
7348-54 Tower Street Richland Hills, TX Acquired 1978 Light Industrial 1.09 1 20,000
7370 Dogwood Park Richland Hills, TX Acquired 1980 Light Industrial 1.18 1 18,500
7339-41 Tower Street Richland Hills, TX Acquired 1980 Light Industrial 0.95 1 17,600
7437-45 Tower Street Richland Hills, TX Acquired 1977 Light Industrial 1.16 1 20,000
7331-59 Airport Freeway Richland Hills, TX Acquired 1987 R&D/Flex 2.63 1 37,800
7338-60 Dogwood Park Richland Hills, TX Acquired 1978 R&D/Flex 1.51 1 26,208
7450-70 Dogwood Park Richland Hills, TX Acquired 1985 Light Industrial 0.88 1 18,000
7423-49 Airport Freeway Richland Hills, TX Acquired 1985 R&D/Flex 2.39 1 33,810
7400 Whitehall Street Richland Hills, TX Acquired 1994 Light Industrial 1.07 1 21,750
1602-1654 Terre Colony Dallas, TX Acquired 1981 Bulk Warehouse 5.72 1 130,949
-------- ----------------------
Subtotal or Average 94.92 33 1,992,447
-------- ----------------------
DAYTON
6094-6104 Executive Blvd Huber Heights, OH Acquired 1975 Light Industrial 3.33 1 43,200
6202-6220 Executive Blvd Huber Heights, OH Acquired 1996 Light Industrial 3.79 1 64,000
6268-6294 Executive Blvd Huber Heights, OH Acquired 1989 Light Industrial 4.03 1 60,800
5749-5753 Executive Blvd Huber Heights, OH Acquired 1975 Light Industrial 1.15 1 12,000
6230-6266 Executive Blvd Huber Heights, OH Acquired 1979 Light Industrial 5.30 1 84,000
2200-2224 Sandridge Road Moriane, OH Acquired 1983 Light Industrial 2.96 1 58,746
8119-8137 Uehling Lane Dayton, OH Acquired 1978 R&D/Flex 1.15 1 20,000
-------- ----------------------
Subtotal or Average 21.71 7 342,746
-------- ----------------------
DENVER
7100 North Broadway - 1 Denver, CO Acquired 1978 Light Industrial 16.80 1 32,269
7100 North Broadway - 2 Denver, CO Acquired 1978 Light Industrial 16.90 1 32,500
7100 North Broadway - 3 Denver, CO Acquired 1978 Light Industrial 11.60 1 22,259
7100 North Broadway - 5 Denver, CO Acquired 1978 Light Industrial 15.00 1 28,789
7100 North Broadway - 6 Denver, CO Acquired 1978 Light Industrial 22.50 1 38,255
20100 East 32nd Avenue Parkway Aurora, CO Acquired 1997 R&D/Flex 4.10 1 51,300
15700-15820 West 6th Avenue Golden, CO Acquired 1978 Light Industrial 1.92 1 52,767
15850-15884 West 6th Avenue Golden, CO Acquired 1978 Light Industrial 1.92 1 31,856
5454 Washington Denver, CO Acquired 1985 Light Industrial 4.00 1 34,740
5801 West 6th Avenue Lakewood, CO Acquired 1980 Light Industrial 1.03 1 15,500
5805 West 6th Avenue Lakewood, CO Acquired 1980 Light Industrial 1.03 1 20,358
5815 West 6th Avenue Lakewood, CO Acquired 1980 Light Industrial 1.03 1 20,765
5825 West 6th Avenue Lakewood, CO Acquired 1980 R&D/Flex 1.03 1 20,748
-3-
138
5835 West 6th Avenue Lakewood, CO Acquired 1980 Light Industrial 1.03 1 20,490
525 East 70th Street Denver, CO Acquired 1985 Light Industrial 5.18 1 12,000
565 East 70th Street Denver, CO Acquired 1985 Light Industrial 5.18 1 29,990
605 East 70th Street Denver, CO Acquired 1985 Light Industrial 5.18 1 34,000
625 East 70th Street Denver, CO Acquired 1985 Light Industrial 5.18 1 24,000
665 East 70th Street Denver, CO Acquired 1985 Light Industrial 5.18 1 24,000
700 West 48th Street Denver, CO Acquired 1984 Light Industrial 5.40 1 53,431
702 West 48th Street Denver, CO Acquired 1984 Light Industrial 5.40 1 23,820
800 East 73rd Street Denver, CO Acquired 1984 R&D/Flex 4.50 1 49,360
850 East 73rd Street Denver, CO Acquired 1984 R&D/Flex 4.50 1 38,962
6425 North Washington Denver, CO Acquired 1983 R&D/Flex 4.05 1 82,120
3370 North Peoria Street Aurora, CO Acquired 1978 R&D/Flex 1.64 1 25,520
3390 North Peoria Street Aurora, CO Acquired 1978 R&D/Flex 1.46 1 22,699
3508-3538 North Peoria Street Aurora, CO Acquired 1978 R&D/Flex 2.61 1 40,653
3568 North Peoria Street Aurora, CO Acquired 1978 R&D/Flex 2.24 1 34,937
4785 Elati Denver, CO Acquired 1972 Light Industrial 3.34 1 34,777
4770 Fox Street Denver, CO Acquired 1972 Light Industrial 3.38 1 26,565
1550 W. Evans Denver, CO Acquired 1975 Light Industrial 3.92 1 78,788
3751-71 Revere Evans Denver, CO Acquired 1980 Reg. Warehouse 2.41 1 55,027
3871 Revere Denver, CO Acquired 1980 Reg. Warehouse 3.19 1 75,265
5454 Havana Street Denver, CO Acquired 1980 R&D/Flex 2.68 1 42,504
5500 Havana Street Denver, CO Acquired 1980 R&D/Flex 2.19 1 34,776
4570 Ivy Street Denver, CO Acquired 1985 Light Industrial 1.77 1 31,355
5855 Stapleton Drive North Denver, CO Acquired 1985 Light Industrial 2.33 1 41,268
5885 Stapleton Drive North Denver, CO Acquired 1985 Light Industrial 3.05 1 53,893
5200-5280 North Broadway Denver, CO Acquired 1977 Light Industrial 1.54 1 31,780
5977-5995 North Broadway Denver, CO Acquired 1978 Light Industrial 4.96 1 50,280
2952-5978 North Broadway Denver, CO Acquired 1978 Light Industrial 7.91 1 88,977
6400 North Broadway Denver, CO Acquired 1982 Light Industrial 4.51 1 69,430
875 Parfet Lakewood, CO Acquired 1975 Light Industrial 3.06 1 49,216
4721 Ironton Street Denver, CO Acquired 1969 R&D/Flex 2.84 1 50,160
833 Parfet Street Lakewood, CO Acquired 1974 R&D/Flex 2.57 1 24,800
11005 West 8th Avenue Lakewood, CO Acquired 1974 Light Industrial 2.57 1 25,672
7100 North Broadway - 7 Denver, CO Acquired 1985 R&D/Flex 2.30 1 24,822
7100 North Broadway - 8 Denver, CO Acquired 1985 R&D/Flex 2.30 1 9,107
6804 East 48th Avenue Denver, CO Acquired 1973 R&D/Flex 2.23 1 46,464
445 Bryant Street Denver, CO Acquired 1960 Light Industrial 6.31 1 292,472
East 47th Drive - A Denver, CO Developed 1997 R&D/Flex 3.00 1 51,200
7025 South Revere Parkway Denver, CO Developed 1997 R&D/Flex 3.20 1 59,270
9500 West 49th Street - A Wheatridge, CO Developed 1997 Light Industrial 1.74 1 19,217
9500 West 49th Street - B Wheatridge, CO Developed 1997 Light Industrial 1.74 1 16,441
9500 West 49th Street - C Wheatridge, CO Developed 1997 R&D/Flex 1.74 1 29,174
9500 West 49th Street - D Wheatridge, CO Developed 1997 Light Industrial 1.74 1 41,615
8100 South Park Way - A Littleton, CO Acquired 1997 R&D/Flex 3.33 1 52,581
8100 South Park Way - B Littleton, CO Acquired 1984 R&D/Flex 0.78 1 12,204
8100 South Park Way - C Littleton, CO Acquired 1984 Light Industrial 4.28 1 67,520
451-591 East 124th Avenue Littleton, CO Acquired 1979 Light Industrial 4.96 1 59,711
14100 East Jewell Aurora, CO Acquired 1980 R&D/Flex 3.67 1 58,553
14190 East Jewell Aurora, CO Acquired 1980 R&D/Flex 1.84 1 29,442
608 Garrison Street Lakewood, CO Acquired 1984 R&D/Flex 2.17 1 25,075
610 Garrison Street Lakewood, CO Acquired 1984 R&D/Flex 2.17 1 24,965
1111 West Evans (A&C) Denver, CO Acquired 1986 Light Industrial 2.00 1 36,894
1111 West Evans (B) Denver, CO Acquired 1986 Light Industrial 0.50 1 4,725
15000 West 6th Avenue Golden, CO Acquired 1985 R&D/Flex 5.25 1 69,279
14998 West 6th Avenue Bldg E Golden, CO Developed 1995 R&D/Flex 2.29 1 42,832
14998 West 6th Avenue Bldg F Englewood, CO Developed 1995 R&D/Flex 2.29 1 20,424
12503 East Euclid Drive Denver, CO Acquired 1986 R&D/Flex 10.90 1 97,871
6547 South Racine Circle Englewood, CO Developed 1996 Light Industrial 3.92 1 60,112
7800 East Iliff Avenue Denver, CO Acquired 1983 R&D/Flex 3.06 1 22,296
2369 South Trenton Way Denver, CO Acquired 1983 R&D/Flex 4.80 1 33,267
2370 South Trenton Way Denver, CO Acquired 1983 R&D/Flex 3.27 1 22,735
2422 S. Trenton Way Denver, CO Acquired 1983 R&D/Flex 3.94 1 27,413
2452 South Trenton Way Denver, CO Acquired 1983 R&D/Flex 6.78 1 47,931
651 Topeka Way Denver, CO Acquired 1985 R&D/Flex 4.53 1 24,000
680 Atchison Way Denver, CO Acquired 1985 R&D/Flex 4.53 1 24,000
8122 South Park Lane - A Littleton, CO Acquired 1986 R&D/Flex 5.09 1 43,987
8122 South Park Lane - B Littleton, CO Acquired 1986 Light Industrial 2.28 1 20,389
1600 South Abilene Aurora, CO Acquired 1986 R&D/Flex 3.53 1 47,930
1620 South Abilene Aurora, CO Acquired 1986 Light Industrial 2.04 1 27,666
1640 South Abilene Aurora, CO Acquired 1986 Light Industrial 2.80 1 37,948
13900 East Florida Ave Aurora, CO Acquired 1986 R&D/Flex 1.44 1 19,493
-4-
139
4301 South Federal Boulevard Englewood, CO Acquired 1997 Reg. Warehouse 2.80 1 35,381
14401-14492 East 33rd Place Aurora, CO Acquired 1979 Bulk Warehouse 4.75 1 100,100
11701 East 53rd Avenue Denver, CO Acquired 1985 Reg. Warehouse 4.19 1 81,981
5401 Oswego Street Denver, CO Acquired 1985 Reg. Warehouse 2.80 1 53,838
3811 Joliet Denver, CO Acquired 1977 R&D/Flex 14.24 1 124,290
2630 West 2nd Avenue Denver, CO Acquired 1970 Light Industrial 0.50 1 8,260
2650 West 2nd Avenue Denver, CO Acquired 1970 Light Industrial 2.80 1 36,081
14818 West 6th Avenue Bldg A Golden, CO Acquired 1985 R&D/Flex 2.54 1 39,776
14828 West 6th Avenue Bldg B Golden, CO Acquired 1985 R&D/Flex 2.54 1 41,805
12055 E 49th Ave/4955 Peoria Denver, CO Acquired 1984 R&D/Flex 3.09 1 49,575
4940-4950 Paris Denver, CO Acquired 1984 R&D/Flex 1.58 1 25,290
4970 Paris Denver, CO Acquired 1984 R&D/Flex 0.98 1 15,767
5010 Paris Denver, CO Acquired 1984 R&D/Flex 0.92 1 14,822
7367 South Revere Parkway Englewood, CO Acquired 1997 Bulk Warehouse 8.50 1 102,839
10311 W Hampden Ave. Lakewood, CO Developed 1999 Light Industrial 4.40 1 52,183
1500 Garden of The Gods Rd. - A Colorado Springs, CO Developed 1999 R&D/Flex 44.00 1 50,760
9195 6th Avenue Lakewood, CO Developed 2000 Light Industrial 1.44 1 16,500
1500 Garden of The Gods Rd. - B Colorado Springs, CO Developed 1999 R&D/Flex 0.00 1 59,970
----------- ------------------
Subtotal or
Average 442.62 102 4,342,864
----------- ------------------
DES MOINES
1500 East Washington Avenue Des Moines, IA Acquired 1987 Bulk Warehouse 13.25 1 192,466
1600 East Washington Avenue Des Moines, IA Acquired 1987 Bulk Warehouse 6.78 1 81,866
4121 McDonald Avenue Des Moines, IA Acquired 1977 Bulk Warehouse 11.02 1 177,431
4141 McDonald Avenue Des Moines, IA Acquired 1976 Bulk Warehouse 11.03 1 263,196
4161 McDonald Avenue Des Moines, IA Acquired 1979 Bulk Warehouse 11.02 1 164,084
1 3100 Justin Des Moines, IA Acquired 1970 Light Industrial 2.16 1 30,000
1 3101 104th St. Des Moines, IA Acquired 1970 Light Industrial 2.16 1 30,072
1 3051 104th St. Des Moines, IA Acquired 1993 Light Industrial 1.08 1 15,000
1 2250 Delaware Ave. Des Moines, IA Acquired 1975 Reg. Warehouse 4.20 1 88,000
----------- ------------------
Subtotal or
Average 62.70 9 1,042,115
----------- ------------------
DETROIT
238 Executive Drive Troy, MI Developed 1973 Light Industrial 1.32 1 13,740
256 Executive Drive Troy, MI Developed 1974 Light Industrial 1.12 1 11,273
301 Executive Drive Troy, MI Developed 1974 Light Industrial 1.27 1 20,411
449 Executive Drive Troy, MI Developed 1975 Reg. Warehouse 2.12 1 33,001
501 Executive Drive Troy, MI Developed 1984 Light Industrial 1.57 1 18,061
451 Robbins Drive Troy, MI Developed 1975 Light Industrial 1.88 1 28,401
700 Stephenson Highway Troy, MI Developed 1978 R&D/Flex 3.13 1 29,344
800 Stephenson Highway Troy, MI Developed 1979 R&D/Flex 4.39 1 48,200
1150 Stephenson Highway Troy, MI Developed 1982 R&D/Flex 1.70 1 18,107
1200 Stephenson Highway Troy, MI Developed 1980 R&D/Flex 2.65 1 25,025
1035 Crooks Road Troy, MI Developed 1980 Light Industrial 1.74 1 23,320
1095 Crooks Road Troy, MI Developed 1986 R&D/Flex 2.83 1 35,042
1416 Meijer Drive Troy, MI Developed 1980 Light Industrial 1.20 1 17,944
1624 Meijer Drive Troy, MI Developed 1984 Light Industrial 3.42 1 44,040
1972 Meijer Drive Troy, MI Developed 1985 Reg. Warehouse 2.36 1 37,075
2112 Meijer Drive Troy, MI Developed 1980 Reg. Warehouse 4.12 1 34,558
1621 Northwood Drive Troy, MI Developed 1977 Bulk Warehouse 1.54 1 24,900
1707 Northwood Drive Troy, MI Developed 1983 Light Industrial 1.69 1 28,750
1749 Northwood Drive Troy, MI Developed 1977 Bulk Warehouse 1.69 1 26,125
1788 Northwood Drive Troy, MI Developed 1977 Light Industrial 1.55 1 12,480
1821 Northwood Drive Troy, MI Developed 1977 Reg. Warehouse 2.07 1 35,050
1826 Northwood Drive Troy, MI Developed 1977 Light Industrial 1.22 1 12,480
1864 Northwood Drive Troy, MI Developed 1977 Light Industrial 1.55 1 12,480
1921 Northwood Drive Troy, MI Developed 1977 Light Industrial 2.33 1 42,000
2230 Elliott Avenue Troy, MI Developed 1974 Light Industrial 0.90 1 12,612
2237 Elliott Avenue Troy, MI Developed 1974 Light Industrial 0.96 1 12,612
2277 Elliott Avenue Troy, MI Developed 1975 Light Industrial 0.96 1 12,612
2291 Elliott Avenue Troy, MI Developed 1974 Light Industrial 1.06 1 12,200
2451 Elliott Avenue Troy, MI Developed 1974 Light Industrial 1.68 1 24,331
2730 Research Drive Rochester Hills, MI Developed 1988 Reg. Warehouse 3.52 1 57,850
2791 Research Drive Rochester Hills, MI Developed 1991 Reg. Warehouse 4.48 1 64,199
2871 Research Drive Rochester Hills, MI Developed 1991 Reg. Warehouse 3.55 1 49,543
2911 Research Drive Rochester Hills, MI Developed 1992 Reg. Warehouse 5.72 1 80,078
3011 Research Drive Rochester Hills, MI Developed 1988 Reg. Warehouse 2.55 1 32,637
2870 Technology Drive Rochester Hills, MI Developed 1988 Light Industrial 2.41 1 24,445
2890 Technology Drive Rochester Hills, MI Developed 1991 Light Industrial 1.76 1 24,410
2900 Technology Drive Rochester Hills, MI Developed 1992 Reg. Warehouse 2.15 1 31,047
2920 Technology Drive Rochester Hills, MI Developed 1992 Light Industrial 1.48 1 19,011
-5-
140
2930 Technology Drive Rochester Hills, MI Developed 1991 Light Industrial 1.41 1 17,994
2950 Technology Drive Rochester Hills, MI Developed 1991 Light Industrial 1.48 1 19,996
2960 Technology Drive Rochester Hills, MI Developed 1992 Reg. Warehouse 3.83 1 41,565
23014 Commerce Drive Farmington Hills, MI Developed 1983 R&D/Flex 0.65 1 7,200
23028 Commerce Drive Farmington Hills, MI Developed 1983 Light Industrial 1.26 1 20,265
23035 Commerce Drive Farmington Hills, MI Developed 1983 Light Industrial 1.23 1 15,200
23042 Commerce Drive Farmintgon Hills, MI Developed 1983 R&D/Flex 0.75 1 8,790
23065 Commerce Drive Farmington Hills, MI Developed 1983 Light Industrial 0.91 1 12,705
23070 Commerce Drive Farmington Hills, MI Developed 1983 R&D/Flex 1.43 1 16,765
23079 Commerce Drive Farmington Hills, MI Developed 1983 Light Industrial 0.85 1 10,830
23093 Commerce Drive Farmington Hills, MI Developed 1983 Reg. Warehouse 3.87 1 49,040
23135 Commerce Drive Farmington Hills, MI Developed 1986 Light Industrial 2.02 1 23,969
23149 Commerce Drive Farmington Hills, MI Developed 1985 Reg. Warehouse 6.32 1 47,700
23163 Commerce Drive Farmington Hills, MI Developed 1986 Light Industrial 1.51 1 19,020
23177 Commerce Drive Farmington Hills, MI Developed 1986 Light Industrial 2.29 1 32,127
23206 Commerce Drive Farmington Hills, MI Developed 1985 Light Industrial 1.30 1 19,822
23290 Commerce Drive Farmington Hills, MI Developed 1980 Reg. Warehouse 2.56 1 42,930
23370 Commerce Drive Farmington Hills, MI Developed 1980 Light Industrial 0.67 1 8,741
24492 Indoplex Circle Farmington Hills, MI Developed 1976 Light Industrial 1.63 1 24,000
24528 Indoplex Circle Farmington Hills, MI Developed 1976 Light Industrial 2.26 1 34,650
21477 Bridge Street Southfield, MI Acquired 1986 Light Industrial 3.10 1 41,500
32450 N Avis Drive Madison Heights, MI Acquired 1974 Light Industrial 3.23 1 55,820
32200 N Avis Drive Madison Heights, MI Acquired 1973 Light Industrial 6.15 1 88,700
11813 Hubbard Livonia, MI Acquired 1979 Light Industrial 1.95 1 33,300
11866 Hubbard Livonia, MI Acquired 1979 Light Industrial 2.32 1 41,380
12050-12300 Hubbard Livonia, MI Acquired 1981 Light Industrial 6.10 2 85,086
38200 Plymouth Road Livonia, MI Developed 1997 Bulk Warehouse 11.43 1 140,365
38220 Plymouth Road Livonia, MI Developed 1988 Bulk Warehouse 13.14 1 145,232
38300 Plymouth Road Livonia, MI Developed 1997 Bulk Warehouse 6.95 1 127,800
12707 Eckles Road Plymouth Township, MI Acquired 1990 Light Industrial 2.62 1 42,300
9300-9328 Harrison Rd Romulus, MI Acquired 1978 Light Industrial 2.53 1 29,286
9330-9358 Harrison Rd Romulus, MI Acquired 1978 Light Industrial 2.53 1 29,280
28420-28448 Highland Rd Romulus, MI Acquired 1979 Light Industrial 2.53 1 29,280
28450-28478 Highland Rd Romulus, MI Acquired 1979 Light Industrial 2.53 1 29,340
28421-28449 Highland Rd Romulus, MI Acquired 1980 Light Industrial 2.53 1 29,285
28451-28479 Highland Rd Romulus, MI Acquired 1980 Light Industrial 2.53 1 29,280
28825-28909 Highland Rd Romulus, MI Acquired 1981 Light Industrial 2.53 1 29,284
28933-29017 Highland Rd Romulus, MI Acquired 1982 Light Industrial 2.53 1 29,280
28824-28908 Highland Rd Romulus, MI Acquired 1982 Light Industrial 2.53 1 29,280
28932-29016 Highland Rd Romulus, MI Acquired 1982 Light Industrial 2.53 1 29,280
9710-9734 Harrison Rd Romulus, MI Acquired 1987 Light Industrial 2.22 1 25,925
9740-9772 Harrison Rd Romulus, MI Acquired 1987 Light Industrial 2.53 1 29,548
9840-9868 Harrison Rd Romulus, MI Acquired 1987 Light Industrial 2.53 1 29,280
9800-9824 Harrison Rd Romulus, MI Acquired 1987 Light Industrial 2.22 1 25,620
29265-29285 Airport Dr Romulus, MI Acquired 1983 Light Industrial 2.05 1 23,707
29185-29225 Airport Dr Romulus, MI Acquired 1983 Light Industrial 3.17 1 36,658
29149-29165 Airport Dr Romulus, MI Acquired 1984 Light Industrial 2.89 1 33,440
29101-29115 Airport Dr Romulus, MI Acquired 1985 R&D/Flex 2.53 1 29,287
29031-29045 Airport Dr Romulus, MI Acquired 1985 Light Industrial 2.53 1 29,280
29050-29062 Airport Dr Romulus, MI Acquired 1986 Light Industrial 2.22 1 25,837
29120-29134 Airport Dr Romulus, MI Acquired 1986 Light Industrial 2.53 1 29,282
29200-29214 Airport Dr Romulus, MI Acquired 1985 Light Industrial 2.53 1 29,282
9301-9339 Middlebelt Rd Romulus, MI Acquired 1983 R&D/Flex 1.29 1 15,414
21405 Trolley Industrial Drive Taylor, MI Acquired 1971 Bulk Warehouse 11.25 1 180,986
26980 Trolley Industrial Drive Taylor, MI Acquired 1997 Bulk Warehouse 5.43 1 102,400
28055 S. Wick Road Romulus, MI Acquired 1989 Light Industrial 6.79 1 42,060
11 12050-12200 Farmington Road Livonia, MI Acquired 1973 Light Industrial 1.34 1 25,470
11 33200 Capitol Avenue Livonia, MI Acquired 1977 Light Industrial 2.16 1 40,000
12 32975 Capitol Avenue Livonia, MI Acquired 1978 R&D/Flex 0.99 1 18,465
12 2725 S. Industrial Highway Ann Arbor, MI Acquired 1997 Light Industrial 2.63 1 37,875
13 32920 Capitol Avenue Livonia, MI Acquired 1973 Reg. Warehouse 0.47 1 8,000
13 32940 Capitol Avenue Livonia, MI Acquired 1971 Light Industrial 0.45 1 8,480
13 11862 Brookfield Avenue Livonia, MI Acquired 1972 Light Industrial 0.92 1 14,600
14 11923 Brookfield Avenue Livonia, MI Acquired 1973 Light Industrial 0.76 1 14,600
14 11965 Brookfield Avenue Livonia, MI Acquired 1973 Light Industrial 0.88 1 14,600
15 34005 Schoolcraft Road Livonia, MI Acquired 1981 Light Industrial 1.70 1 26,100
15 13405 Stark Road Livonia, MI Acquired 1980 Light Industrial 0.65 1 9,750
14 1170 Chicago Road Troy, MI Acquired 1983 Light Industrial 1.73 1 21,500
14 1200 Chicago Road Troy, MI Acquired 1984 Light Industrial 1.73 1 26,210
14 450 Robbins Drive Troy, MI Acquired 1976 Light Industrial 1.38 1 19,050
556 Robbins Drive Troy, MI Acquired 1974 Light Industrial 0.63 1 8,760
-6-
141
1230 Chicago Road Troy, MI Acquired 1996 Reg. Warehouse 2.10 1 30,120
16 12886 Westmore Avenue Livonia, MI Acquired 1981 Light Industrial 1.01 1 18,000
16 12898 Westmore Avenue Livonia, MI Acquired 1981 Light Industrial 1.01 1 18,000
16 33025 Industrial Road Livonia, MI Acquired 1980 Light Industrial 1.02 1 6,250
2002 Stephenson Highway Troy, MI Acquired 1986 R&D/Flex 1.42 1 21,850
16 47711 Clipper Street Plymouth Township, MI Acquired 1996 Reg. Warehouse 2.27 1 36,926
17 32975 Industrial Road Livonia, MI Acquired 1984 Light Industrial 1.19 1 21,000
17 32985 Industrial Road Livonia, MI Acquired 1985 Light Industrial 0.85 1 12,040
17 32995 Industrial Road Livonia, MI Acquired 1983 Light Industrial 1.11 1 14,280
17 12874 Westmore Avenue Livonia, MI Acquired 1984 Light Industrial 1.01 1 16,000
17 33067 Industrial Road Livonia, MI Acquired 1984 Light Industrial 1.11 1 18,640
17 1775 Bellingham Troy, MI Acquired 1987 R&D/Flex 1.88 1 28,900
17 1785 East Maple Troy, MI Acquired 1985 Light Industrial 0.80 1 10,200
17 1807 East Maple Troy, MI Acquired 1984 R&D/Flex 2.15 1 28,100
17 9800 Chicago Troy, MI Acquired 1985 Light Industrial 1.09 1 14,280
17 1840 Enterprise Drive Rochester Hills, MI Acquired 1990 R&D/Flex 2.42 1 33,240
18 1885 Enterprise Drive Rochester Hills, MI Acquired 1990 Light Industrial 1.47 1 19,604
18 1935-55 Enterprise Drive Rochester Hills, MI Acquired 1990 R&D/Flex 4.54 1 53,400
19 5500 Enterprise Court Warren, MI Acquired 1989 R&D/Flex 3.93 1 53,900
19 5800 Enterprise Court Warren, MI Acquired 1987 Manufacturing 1.48 1 17,240
20 750 Chicago Road Troy, MI Acquired 1986 Light Industrial 1.54 1 26,709
21 800 Chicago Road Troy, MI Acquired 1985 Light Industrial 1.48 1 24,340
22 850 Chicago Road Troy, MI Acquired 1984 Light Industrial 0.97 1 16,049
23 2805 S. Industrial Highway Ann Arbor, MI Acquired 1990 R&D/Flex 1.70 1 24,458
6833 Center Drive Sterling Heights, MI Acquired 1998 Reg. Warehouse 4.42 1 66,132
22731 Newman Street Dearborn, MI Acquired 1985 R&D/Flex 2.31 1 48,000
32201 North Avis Drive Madison Heights, MI Acquired 1974 R&D/Flex 4.19 1 50,000
1100 East Mandoline Road Madison Heights, MI Acquired 1967 Bulk Warehouse 8.19 1 117,903
30081 Stephenson Highway Madison Heights, MI Acquired 1967 Light Industrial 2.50 1 50,750
1120 John A. Papalas Drive Lincoln Park, MI Acquired 1985 Light Industrial 10.30 3 120,410
36555 Ecorse Romulus, MI Developed 1998 Bulk Warehouse 18.00 1 268,800
6340 Middlebelt Romulus, MI Developed 1998 Light Industrial 11.03 1 77,508
4872 S. Lapeer Road Lake Orion Twsp, MI Developed 1999 Bulk Warehouse 9.58 1 125,605
775 James L. Hart Parkway Ypsilanti, MI Developed 1999 Reg. Warehouse 7.65 1 55,535
------- --------------------
Subtotal or
Average 395.01 146 5,182,696
------- --------------------
GRAND RAPIDS
2 84th Street SW Byron Center, MI Acquired 1986 Light Industrial 3.01 1 30,000
100 84th Street SW Byron Center, MI Acquired 1979 Light Industrial 4.20 1 81,000
511 76th Street SW Grand Rapids, MI Acquired 1986 Bulk Warehouse 14.44 1 202,500
553 76th Street SW Grand Rapids, MI Acquired 1985 R&D/Flex 1.16 1 10,000
555 76th Street SW Grand Rapids, MI Acquired 1987 Bulk Warehouse 12.50 1 200,000
2925 Remico Avenue SW Grandville, MI Acquired 1988 Light Industrial 3.40 1 66,505
2935 Walkent Court NW Grand Rapids, MI Acquired 1991 Light Industrial 6.13 1 64,961
3300 Kraft Avenue SE Grand Rapids, MI Acquired 1987 Bulk Warehouse 11.57 1 200,000
3366 Kraft Avenue SE Grand Rapids, MI Acquired 1987 Bulk Warehouse 12.35 1 200,000
5001 Kendrick Court SE Grand Rapids, MI Acquired 1983 Light Industrial 4.00 1 61,500
5050 Kendrick Court SE Grand Rapids, MI Acquired 1988 Manufacturing 26.94 1 413,500
5015 52nd Street SE Grand Rapids, MI Acquired 1987 Light Industrial 4.11 1 61,250
5025 28th Street Grand Rapids, MI Acquired 1967 Light Industrial 3.97 1 14,400
5079 33rd Street SE Grand Rapids, MI Acquired 1990 Bulk Warehouse 6.74 1 109,875
5333 33rd Street SE Grand Rapids, MI Acquired 1991 Bulk Warehouse 8.09 1 101,250
5130 Patterson Avenue SE Grand Rapids, MI Acquired 1987 Light Industrial 6.57 1 30,000
3395 Kraft Avenue Grand Rapids, MI Acquired 1985 Light Industrial 3.70 1 42,600
3427 Kraft Avenue Grand Rapids, MI Acquired 1985 Light Industrial 2.40 1 32,600
-------- -------------------
Subtotal or
Average 135.28 18 1,921,941
-------- -------------------
HARTFORD
20 Utopia Road Manchester, CT Acquired 1989 Light Industrial 3.96 1 36,000
50 Utopia Road Manchester, CT Acquired 1987 Light Industrial 3.97 1 60,000
135 Sheldon Road Manchester, CT Acquired 1987 Light Industrial 6.17 1 60,000
169 Progress Road Manchester, CT Acquired 1987 Manufacturing 11.25 1 84,000
227 Progress Drive Manchester, CT Acquired 1986 Light Industrial 2.51 1 19,800
249 Progress Drive Manchester, CT Acquired 1985 Light Industrial 3.73 1 30,000
428 Hayden Station Road Windsor, CT Acquired 1988 Light Industrial 5.47 1 36,000
430 Hayden Station Road Windsor, CT Acquired 1987 Light Industrial 4.34 1 48,000
436 Hayden Station Road Windsor, CT Acquired 1988 Light Industrial 10.96 1 60,000
460 Hayden Station Road Windsor, CT Acquired 1985 Light Industrial 4.71 1 42,000
345 MacCausland Court Cheshire, CT Developed 1998 Bulk Warehouse 13.14 1 143,391
-------- -------------------
Subtotal or
Average 70.21 11 619,191
-------- -------------------
-7-
142
HOUSTON
2102-2314 Edwards Street Houston, TX Acquired 1961 Bulk Warehouse 5.02 1 115,248
4545 Eastpark Drive Houston, TX Acquired 1972 Reg. Warehouse 3.80 1 81,295
3351 Rauch St Houston, TX Acquired 1970 Reg. Warehouse 4.04 1 82,500
3851 Yale St Houston, TX Acquired 1971 Bulk Warehouse 5.77 1 132,554
3337-3347 Rauch Street Houston, TX Acquired 1970 Reg. Warehouse 2.29 1 60,085
8505 N Loop East Houston, TX Acquired 1981 Bulk Warehouse 4.99 1 107,769
4749-4799 Eastpark Dr Houston, TX Acquired 1979 Bulk Warehouse 7.75 1 182,563
4851 Homestead Road Houston, TX Acquired 1973 Bulk Warehouse 3.63 1 142,250
3365-3385 Rauch Street Houston, TX Acquired 1970 Reg. Warehouse 3.31 1 82,140
5050 Campbell Road Houston, TX Acquired 1970 Bulk Warehouse 6.10 1 121,875
4300 Pine Timbers Houston, TX Acquired 1980 Bulk Warehouse 4.76 1 113,400
10600 Hampstead Houston, TX Acquired 1974 Light Industrial 1.26 1 19,063
2300 Fairway Park Dr Houston, TX Acquired 1974 Light Industrial 1.25 1 19,008
7901 Blankenship Houston, TX Acquired 1972 Light Industrial 2.17 1 48,000
2500-2530 Fairway Park Drive Houston, TX Acquired 1974 Bulk Warehouse 8.72 1 213,638
6550 Longpointe Houston, TX Acquired 1980 Bulk Warehouse 4.13 1 97,700
1815 Turning Basin Dr Houston, TX Acquired 1980 Bulk Warehouse 6.34 1 139,630
1819 Turning Basin Dr Houston, TX Acquired 1980 Light Industrial 2.85 1 65,494
4545 Mossford Dr Houston, TX Acquired 1975 Reg. Warehouse 3.56 1 66,565
1805 Turning Basin Drive Houston, TX Acquired 1980 Bulk Warehouse 7.60 1 155,250
9835A Genard Road Houston, TX Acquired 1980 Bulk Warehouse 39.20 1 417,350
9835B Genard Road Houston, TX Acquired 1980 Reg. Warehouse 6.40 1 66,600
16134 West Hardy Houston, TX Acquired 1984 Light Industrial 3.60 1 34,177
16216 West Hardy Houston, TX Acquired 1984 Light Industrial 3.12 1 29,631
10161 Harwin Drive Houston, TX Acquired 1979 R&D/Flex 5.27 1 73,052
10165 Harwin Drive Houston, TX Acquired 1979 R&D/Flex 2.31 1 31,987
10175 Harwin Drive Houston, TX Acquired 1979 Light Industrial 2.85 1 39,600
----------- ---------------------
Subtotal or
Average 152.09 27 2,738,424
----------- ---------------------
INDIANAPOLIS
2400 North Shadeland Indianapolis, IN Acquired 1970 Reg. Warehouse 2.45 1 40,000
2402 North Shadeland Indianapolis, IN Acquired 1970 Bulk Warehouse 7.55 1 121,539
7901 West 21st St. Indianapolis, IN Acquired 1985 Bulk Warehouse 12.00 1 353,000
6951 E 30th St Indianapolis, IN Developed 1995 Light Industrial 3.81 1 44,000
6701 E 30th St Indianapolis, IN Acquired 1995 Light Industrial 3.00 1 7,820
6737 E 30th St Indianapolis, IN Developed 1995 Reg. Warehouse 11.01 1 87,500
1225 Brookville Way Indianapolis, IN Developed 1997 Light Industrial 1.00 1 10,000
6555 E 30th St Indianapolis, IN Acquired 1969/1981 Bulk Warehouse 22.00 1 331,826
2432-2436 Shadeland Indianapolis, IN Acquired 1968 Light Industrial 4.57 1 70,560
8402-8440 E 33rd St Indianapolis, IN Acquired 1977 Light Industrial 4.70 1 55,200
8520-8630 E 33rd St Indianapolis, IN Acquired 1976 Light Industrial 5.30 1 81,000
8710-8768 E 33rd St Indianapolis, IN Acquired 1979 Light Industrial 4.70 1 43,200
3316-3346 N. Pagosa Court Indianapolis, IN Acquired 1977 Light Industrial 5.10 1 81,000
3331 Raton Court Indianapolis, IN Acquired 1979 Light Industrial 2.80 1 35,000
24 4430 Airport Expressway Indianapolis, IN Acquired 1970 Bulk Warehouse 32.00 1 486,394
6751 E 30th St Indianapolis, IN Acquired 1997 Bulk Warehouse 6.34 1 100,000
24 9200 East 146th Street Noblesville, IN Acquired 1961 Bulk Warehouse 21.65 1 150,488
9210 East 146th Street Noblesville, IN Acquired 1978 Reg. Warehouse 11.91 1 23,950
24 6575 East 30th Street Indianapolis, IN Developed 1998 Bulk Warehouse 4.00 1 60,000
24 6585 East 30th Street Indianapolis, IN Developed 1998 Bulk Warehouse 6.00 1 100,000
----------- ---------------------
Subtotal or
Average 171.89 20 2,282,477
----------- ---------------------
LONG ISLAND
1140 Motor Parkway Hauppauge, NY Acquired 1978 Bulk Warehouse 8.00 1 153,500
10 Edison Street Amityville, NY Acquired 1971 Light Industrial 1.40 1 34,400
120 Secatogue Ave Farmingdale, NY Acquired 1957 Reg. Warehouse 2.60 1 58,850
100 Lauman Lane Hicksville, NY Acquired 1968 Reg. Warehouse 1.90 1 36,880
200 Finn Court Farmingdale, NY Acquired 1965 Bulk Warehouse 5.00 1 105,573
717 Broadway Ave Holbrook, NY Acquired 1967 Bulk Warehouse 12.30 1 150,000
725 Broadway Holbrook, NY Acquired 1967 Bulk Warehouse 8.00 1 122,160
270 Duffy Avenue Hicksville, NY Acquired 1956 R&D/Flex 8.40 1 133,647
280 Duffy Avenue Hicksville, NY Acquired 1956 Light Industrial 2.60 1 49,200
575 Underhill Boulevard Syossett, NY Acquired 1967 R&D/Flex 16.60 1 234,427
5 Sidney Court Lindenhurst, NY Acquired 1962 Light Industrial 1.70 1 29,300
7 Sidney Court Lindenhurst, NY Acquired 1964 Light Industrial 5.10 1 34,000
450 Commack Road Deer Park, NY Acquired 1964 Light Industrial 5.10 1 60,005
99 Layfayette Drive Syosset, NY Developed 1964 Bulk Warehouse 10.90 1 219,954
65 East Bethpage Road Plainview, NY Acquired 1960 Light Industrial 1.40 1 25,401
171 Milbar Boulevard Farmingdale, NY Acquired 1961 Reg. Warehouse 2.30 1 62,265
95 Horseblock Road Yaphank, NY Acquired 1971 Bulk Warehouse 20.00 1 180,906
-8-
143
151-171 East 2nd Street Huntington, NY Developed 1968 Light Industrial 2.70 1 44,155
171-175 East 2nd Street Huntington, NY Developed 1969 Light Industrial 2.60 1 42,374
35 Bloomingdale Road Hicksville, NY Developed 1962 Light Industrial 1.40 1 31,950
15-39 Tec Street Hicksville, NY Acquired 1965 Light Industrial 1.10 1 17,350
100 Tec Street Hicksville, NY Acquired 1965 Light Industrial 1.20 1 25,000
51-89 Tec Street Hicksville, NY Acquired 1965 Light Industrial 1.20 1 21,741
502 Old Country Road Hicksville, NY Acquired 1965 Light Industrial 0.50 1 10,000
80-98 Tec Street Hicksville, NY Acquired 1965 Light Industrial 0.75 1 13,025
201-233 Park Avenue Hicksville, NY Developed 1962 Light Industrial 1.70 1 36,787
One Fairchild Court Plainview, NY Acquired 1959 R&D/Flex 5.75 1 57,620
79 Express Street Plainview, NY Acquired 1972 Light Industrial 4.70 1 71,126
92 Central Avenue Farmingdale, NY Acquired 1961 Light Industrial 4.70 1 70,231
160 Engineer Drive Hicksville, NY Developed 1966 Light Industrial 1.90 1 29,500
260 Engineers Drive Hicksville, NY Developed 1966 Light Industrial 2.80 1 52,580
87-119 Engineers Dr. Hicksville, NY Developed 1966 Light Industrial 1.70 2 36,400
185 Price Parkway Farmingdale, NY Acquired 1969 Bulk Warehouse 6.40 1 100,000
62 Alpha Plaza Hicksville, NY Acquired 1968 Light Industrial 2.64 1 34,600
90 Alpha Plaza Hicksville, NY Acquired 1969 Light Industrial 1.36 1 34,175
325 Duffy Avenue Hicksville, NY Acquired 1970 Light Industrial 6.64 1 100,000
600 West John Street Hicksville, NY Developed 1955 Light Industrial 9.00 1 210,841
939 Motor Parkway Hauppauge, NY Acquired 1977 Light Industrial 1.50 1 21,900
200 13th Avenue Ronkonkoma,NY Acquired 1979 Light Industrial 4.70 1 72,089
100 13th Avenue Ronkonkoma,NY Acquired 1979 Manufacturing 4.14 1 62,898
1 Comac Loop Ronkonkoma,NY Acquired 1980 Light Industrial 5.18 1 63,853
80 13th Avenue Ronkonkoma,NY Acquired 1983 Light Industrial 6.22 1 87,102
90 13th Avenue Ronkonkoma,NY Acquired 1982 Light Industrial 6.95 1 104,313
33 Comac Loop Ronkonkoma,NY Acquired 1983 Light Industrial 5.37 1 71,904
101-125 Comac Street Ronkonkoma,NY Acquired 1985 Light Industrial 8.42 1 99,539
360 Smith Street Farmingdale, NY Acquired 1965 Light Industrial 3.00 1 60,000
700 Dibblee Drive Garden City, NY Acquired 1965 Bulk Warehouse 12.24 1 325,000
275 Marcus Blvd Hauppauge, NY Acquired 1985 Light Industrial 5.00 1 52,329
-------- ----------------------
Subtotal or
Average 236.76 49 3,750,850
-------- ----------------------
LOUISVILLE
----------
24 1251 Port Road Jeffersonville, IN Developed 1998 Bulk Warehouse 33.00 1 532,400
9001 Cane Run Road Louisville, KY Developed 1998 Bulk Warehouse 39.60 1 212,500
9101 Cane Run Road Louisville, KY Developed 2000 Bulk Warehouse 14.00 1 231,000
-------- ----------------------
Subtotal or
Average 86.60 3 975,900
-------- ----------------------
MILWAUKEE
---------
6523 N Sydney Place Glendale, WI Acquired 1978 Light Industrial 4.00 1 43,440
8800 W Bradley Milwaukee, WI Acquired 1982 Light Industrial 8.00 1 77,621
1435 North 113th St Wauwatosa, WI Acquired 1993 Light Industrial 4.69 1 51,950
11217-43 W. Becher St West Allis, WI Acquired 1979 Light Industrial 1.74 1 29,099
2152 S 114th Street West Allis, WI Acquired 1980 Light Industrial 3.30 1 63,716
4560 N 124th Street Wauwatosa, WI Acquired 1976 Light Industrial 1.31 1 25,000
25 Science Drive Sturtevant, WI Developed 1997 Manufacturing 35.00 1 468,000
12221 W Feerick Street Wauwatosa, WI Acquired 1971 Reg. Warehouse 1.90 1 39,800
4410-80 North132nd Street Butler, WI Developed 1999 Bulk Warehouse 4.90 1 100,000
-------- ----------------------
Subtotal or
Average 64.84 9 898,626
-------- ----------------------
MINNEAPOLIS
-----------
6507-6545 Cecilia Circle Bloomington, MN Acquired 1980 Manufacturing 9.65 1 74,118
1275 Corporate Center Drive Eagan, MN Acquired 1990 Light Industrial 1.50 1 19,675
1279 Corporate Center Drive Eagan, MN Acquired 1990 Light Industrial 1.50 1 19,792
2815 Eagandale Boulevard Eagan, MN Acquired 1990 Light Industrial 2.20 1 29,106
6201 West 111th Street Bloomington, MN Developed 1987 Bulk Warehouse 37.00 1 424,866
6403-6545 Cecilia Drive Bloomington, MN Acquired 1980 Light Industrial 9.65 1 87,198
6925-6943 Washington Avenue Edina, MN Acquired 1972 Manufacturing 2.75 1 37,625
6955-6973 Washington Avenue Edina, MN Acquired 1972 Manufacturing 2.25 1 31,189
7251-7267 Washington Avenue Edina, MN Acquired 1972 Light Industrial 1.82 1 26,250
7301-7325 Washington Avenue Edina, MN Acquired 1972 Light Industrial 1.92 1 27,297
7101 Winnetka Avenue North Brooklyn Park, MN Developed 1990 Bulk Warehouse 14.18 1 252,978
7600 Golden Triangle Drive Eden Prairie, MN Developed 1989 R&D/Flex 6.79 1 74,148
7900 Main Street Northeast Fridley, MN Acquired 1973 Manufacturing 6.09 1 97,020
7901 Beech Street Northeast Fridley, MN Acquired 1975 Manufacturing 6.07 1 97,020
9901 West 74th Street Eden Prairie, MN Developed 1983/88 Reg. Warehouse 8.86 1 150,000
11201 Hampshire Avenue South Bloomington, MN Developed 1986 Manufacturing 5.90 1 60,480
12220-12222 Nicollet Avenue Burnsville, MN Developed 1989/90 Light Industrial 1.80 1 17,116
12250-12268 Nicollet Avenue Burnsville, MN Developed 1989/90 Light Industrial 4.30 1 42,465
12224-12226 Nicollet Avenue Burnsville, MN Developed 1989/90 R&D/Flex 2.40 1 23,607
-9-
144
305 2nd Street Northwest New Brighton, MN Acquired 1991 Light Industrial 5.43 1 62,293
980 Lone Oak Road Eagan, MN Acquired 1992 Reg. Warehouse 11.40 1 154,950
990 Lone Oak Road Eagan, MN Acquired 1989 Reg. Warehouse 11.41 1 153,608
1030 Lone Oak Road Eagan, MN Acquired 1988 Light Industrial 6.30 1 83,076
1060 Lone Oak Road Eagan, MN Acquired 1988 Light Industrial 6.50 1 82,728
5400 Nathan Lane Plymouth, MN Acquired 1990 Light Industrial 5.70 1 72,089
6464 Sycamore Court Maple Grove, MN Acquired 1990 Manufacturing 6.40 1 79,702
10120 W 76th Street Eden Prairie, MN Acquired 1987 Light Industrial 4.52 1 57,798
7615 Golden Triangle Eden Prairie, MN Acquired 1987 Light Industrial 4.61 1 52,816
7625 Golden Triangle Eden Prairie, MN Acquired 1987 Light Industrial 4.61 1 73,125
2605 Fernbrook Lane North Plymouth, MN Acquired 1987 R&D/Flex 6.37 1 80,769
12155 Nicollet Ave. Burnsville, MN Developed 1995 Reg. Warehouse 5.80 1 48,000
73rd Avenue North Brooklyn Park, MN Acquired 1995 R&D/Flex 4.46 1 59,782
1905 W Country Road C Roseville, MN Acquired 1993 R&D/Flex 4.60 1 47,735
2720 Arthur Street Roseville, MN Acquired 1995 R&D/Flex 6.06 1 74,337
10205 51st Avenue North Plymouth, MN Acquired 1990 Reg. Warehouse 2.00 1 30,476
4100 Peavey Road Chaska, MN Acquired 1988 Manufacturing 8.27 1 78,029
11300 Hamshire Ave South Bloomington, MN Acquired 1983 Bulk Warehouse 9.94 1 145,210
375 Rivertown Drive Woodbury, MN Developed 1996 Bulk Warehouse 11.33 1 251,968
5205 Highway 169 Plymouth, MN Acquired 1960 Light Industrial 7.92 1 97,770
6451-6595 Citywest Parkway Eden Prairie, MN Acquired 1984 R&D/Flex 6.98 1 83,189
7100-7190 Shady Oak Rd Eden Prairie, MN Acquired 1982 Light Industrial 14.44 3 187,777
7500-7546 Washington Square Eden Prairie, MN Acquired 1975 Light Industrial 5.40 1 46,200
7550-7558 Washington Square Eden Prairie, MN Acquired 1975 Light Industrial 2.70 1 29,739
5240-5300 Valley
Industrial Blvd S Shakopee, MN Acquired 1973 Light Industrial 9.06 1 80,001
1565 First Avenue NW New Brighton, MN Acquired 1978 Manufacturing 8.87 1 112,083
7125 Northland Terrace Brooklyn Park, MN Acquired 1996 R&D/Flex 5.89 1 79,958
6900 Shady Oak Road Eden Prairie, MN Acquired 1980 R&D/Flex 4.60 1 49,190
6477-6525 City West Parkway Eden Prairie, MN Acquired 1984 R&D/Flex 7.00 1 89,456
1157 Valley Park Drive Shakopee, MN Developed 1997 Bulk Warehouse 9.97 1 126,382
500-530 Kasota Avenue SE Minneapolis, MN Acquired 1976 Manufacturing 4.47 1 85,442
770-786 Kasota Avenue SE Minneapolis, MN Acquired 1976 Manufacturing 3.16 1 56,388
800 Kasota Avenue SE Minneapolis, MN Acquired 1976 Manufacturing 4.10 1 100,250
2530-2570 Kasota Avenue St. Paul, MN Acquired 1976 Manufacturing 4.56 1 75,426
504 Malcolm Ave Minneapolis, MN Developed 1999 Light Industrial 7.50 1 143,066
553 North Fairview Minneapolis, MN Developed 1999 Bulk Warehouse 10.75 1 124,800
1150 Gateway Drive Shakopee, MN Developed 1999 Bulk Warehouse 9.75 1 153,454
-------- ----------------------
Subtotal or
Average 379.46 58 5,001,012
-------- ----------------------
NASHVILLE
---------
417 Harding Industrial Drive Nashville, TN Acquired 1972 Bulk Warehouse 13.70 1 207,440
3099 Barry Drive Portland, TN Acquired 1995 Manufacturing 6.20 1 109,058
3150 Barry Drive Portland, TN Acquired 1993 Bulk Warehouse 26.32 1 268,253
5599 Highway 31 West Portland, TN Acquired 1995 Bulk Warehouse 20.00 1 161,500
1650 Elm Hill Pike Nashville, TN Acquired 1984 Light Industrial 3.46 1 41,228
1821 Air Lane Drive Nashville, TN Acquired 1984 Light Industrial 2.54 1 25,300
1102 Appleton Drive Nashville, TN Acquired 1984 Light Industrial 1.73 1 28,022
1920 Air Lane Drive Nashville, TN Acquired 1985 Light Industrial 3.19 1 49,922
1931 Air Lane Drive Nashville, TN Acquired 1984 Light Industrial 10.11 1 87,549
470 Metroplex Drive Nashville, TN Acquired 1986 Light Industrial 8.11 2 102,040
1150 Antiock Pike Nashville, TN Acquired 1987 Bulk Warehouse 9.83 1 146,055
1630 Corporate Place LaVergne, TN Developed 1999 Bulk Warehouse 7.60 1 122,000
4640 Cummings Park Nashville, TN Acquired 1986 Bulk Warehouse 14.69 1 100,000
211 Nesbitt North Nashville, TN Acquired 1983 Bulk Warehouse 6.12 1 135,625
211 Nesbitt South Nashville, TN Acquired 1983 Bulk Warehouse 6.10 1 135,926
211 Nesbitt West Nashville, TN Acquired 1985 Bulk Warehouse 3.05 1 67,500
-------- ----------------------
Subtotal or
Average 142.75 17 1,787,418
-------- ----------------------
NEW ORLEANS
-----------
520-524 Elmwood Park Jefferson, LA Acquired 1986 Light Industrial 5.32 2 102,209
Blvd
161 James Drive St. Rose, LA Acquired 1986 Light Industrial 2.80 1 47,474
West
150 James Drive St. Rose, LA Acquired 1986 Light Industrial 3.60 1 49,275
East
150 Canvasback St. Rose, LA Acquired 1986 Reg. Warehouse 2.80 1 40,500
Dr
-------- ----------------------
SUBTOTAL OR
AVERAGE 14.52 5 239,458
-------- ----------------------
NORTHERN NEW JERSEY
-------------------
60 Ethel Road West Piscataway, NJ Acquired 1982 Light Industrial 3.93 1 42,802
70 Ethel Road West Piscataway, NJ Acquired 1979 Light Industrial 3.78 1 61,500
105 Neptune Boulevard Neputne, NJ Developed 1989 Light Industrial 10.00 1 20,440
140 Hanover Avenue Hanover, NJ Acquired 1964/1988 R&D/Flex 2.95 1 24,905
601-629 Montrose Avenue SouthPlainfield, NJ Developed 1974 Light Industrial 5.83 1 75,000
-10-
145
3 Marlen Hamilton, NJ Developed 1981 Light Industrial 1.11 1 13,174
5 Marlen Hamilton, NJ Developed 1981 Light Industrial 1.56 1 21,000
7 Marlen Hamilton, NJ Developed 1982 Light Industrial 2.05 1 28,400
8 Marlen Hamilton, NJ Developed 1982 Reg. Warehouse 4.36 1 60,001
15 Marlen Hamilton, NJ Developed 1982 Light Industrial 1.19 1 13,562
17 Marlen Hamilton, NJ Developed 1981 Light Industrial 1.32 1 20,065
1 South Gold Drive Hamilton, NJ Developed 1973 Light Industrial 1.50 1 20,009
5 South Gold Drive Hamilton, NJ Developed 1974 Light Industrial 1.97 1 24,000
6 South Gold Drive Hamilton, NJ Developed 1975 Light Industrial 1.00 1 13,580
7 South Gold Drive Hamilton, NJ Developed 1976 Light Industrial 1.00 1 10,220
8 South Gold Drive Hamilton, NJ Developed 1977 Light Industrial 1.14 1 16,907
9 South Gold Drive Hamilton, NJ Developed 1980 Light Industrial 1.00 1 13,583
11 South Gold Drive Hamilton, NJ Developed 1979 Light Industrial 1.97 1 33,114
12 South Gold Drive Hamilton, NJ Developed 1980 Light Industrial 1.29 1 20,240
9 Princess Road Lawrenceville, NJ Developed 1985 R&D/Flex 2.36 1 24,375
11 Princess Road Lawrenceville, NJ Developed 1985 R&D/Flex 5.33 1 55,000
15 Princess Road Lawrenceville, NJ Developed 1986 R&D/Flex 2.00 1 20,625
17 Princess Road Lawrenceville, NJ Developed 1986 R&D/Flex 1.82 1 18,750
220 Hanover Avenue Hanover, NJ Developed 1987 Bulk Warehouse 29.27 1 158,242
244 Shefield Street Mountainside, NJ Acquired 1965/1986 Light Industrial 2.20 1 23,000
30 Troy Road Hanover, NJ Developed 1972 Light Industrial 1.31 1 17,500
15 Leslie Court Hanover, NJ Developed 1971 Light Industrial 3.08 1 18,000
20 Leslie Court Hanover, NJ Developed 1974 Light Industrial 1.38 1 17,997
25 Leslie Court Hanover, NJ Developed 1975 Light Industrial 1.30 1 70,800
130 Algonquin Parkway Hanover, NJ Developed 1973 Light Industrial 5.50 1 29,008
150 Algonquin Parkway Hanover, NJ Developed 1973 Light Industrial 2.47 1 17,531
55 Locust Ave Roseland, NJ Acquired 1980 Reg. Warehouse 13.63 1 79,750
31 West Forest Street Englewood, NJ Developed 1978 Light Industrial 6.00 2 110,000
25 World's Fair Drive Franklin, NJ Developed 1986 R&D/Flex 1.81 1 20,000
14 World's Fair Drive Franklin, NJ Developed 1980 R&D/Flex 4.53 1 60,000
16 World's Fair Drive Franklin, NJ Developed 1981 Light Industrial 3.62 1 43,400
18 World's Fair Drive Franklin, NJ Developed 1982 R&D/Flex 1.06 1 12,809
23 World's Fair Drive Franklin, NJ Developed 1982 Light Industrial 1.20 1 16,000
12 World's Fair Drive Franklin, NJ Developed 1981 Light Industrial 3.85 1 65,000
49 Napoleon Court Franklin, NJ Developed 1982 Light Industrial 2.06 1 32,500
50 NapoleanCourt Franklin, NJ Developed 1982 Light Industrial 1.52 1 20,158
22 World's Fair Drive Franklin, NJ Developed 1983 Light Industrial 3.52 1 50,000
26 World's Fair Drive Franklin, NJ Developed 1984 Light Industrial 3.41 1 47,000
24 World's Fair Drive Franklin, NJ Developed 1984 Light Industrial 3.45 1 47,000
12 Wright Way Oakland, NJ Acquired 1981 Reg. Warehouse 6.52 1 52,402
-------- ----------------------
Subtotal or
Average 163.15 46 1,659,349
-------- ----------------------
PHILADELPHIA
------------
10 212 Welsh Pool Road Exton, PA Acquired 1975 Light Industrial 6.56 1 25,361
10 230-240 Welsh Pool Road Exton, PA Acquired 1975 Manufacturing 6.56 1 30,000
10 264 Welsh Pool Road Exton, PA Acquired 1975 R&D/Flex 2.84 1 11,256
10 254 Welsh Pool Road Exton, PA Acquired 1975 Light Industrial 2.84 1 28,180
10 256 Welsh Pool Road Exton, PA Acquired 1975 Light Industrial 2.84 1 12,038
10 213 Welsh Pool Road Exton, PA Acquired 1975 Light Industrial 3.01 1 22,095
10 251 Welsh Pool Road Exton, PA Acquired 1975 R&D/Flex 4.10 1 25,546
10 253-255 Welsh Pool Road Exton, PA Acquired 1975 Light Industrial 4.10 1 20,800
10 151-161 Philips Road Exton, PA Acquired 1975 Light Industrial 3.82 1 30,065
10 210 Philips Road Exton, PA Acquired 1975 Manufacturing 6.56 1 26,827
10 215 Welsh Pool Road Exton, PA Acquired 1975 Light Industrial 2.12 1 14,041
10 102 Pickering Way Exton, PA Acquired 1980 R&D/Flex 8.87 1 81,071
10 217 Welsh Pool Road Exton, PA Acquired 1975 Light Industrial 2.12 1 11,293
10 216 Philips Road Exton, PA Acquired 1985 Light Industrial 2.99 1 39,037
10 202 Philips Road Exton, PA Acquired 1972 Reg. Warehouse 2.94 1 46,750
10 110 Thousand Oaks Blvd Morgantown, PA Acquired 1987 Bulk Warehouse 7.89 1 110,000
10 20 McDonald Blvd Aston, PA Acquired 1988 Light Industrial 2.22 1 28,900
10 30 McDonald Blvd Aston, PA Acquired 1988 Light Industrial 1.68 1 22,000
1 219 Welsh Pool Road Exton, PA Acquired 1980 Light Industrial 3.00 1 19,965
10 2994-96 Samuel Drive Bensalem, Pa Acquired 1974 Bulk Warehouse 10.06 1 214,320
-------- ----------------------
SUBTOTAL OR
AVERAGE 87.12 20 819,545
-------- ----------------------
PHOENIX
-------
7340 South Kyrene Road Tempe, AZ Acquired 1996 Reg. Warehouse 7.20 1 63,720
7350 South Kyrene Road Tempe, AZ Acquired 1996 Reg. Warehouse 5.36 1 99,384
7360 South Kyrene Road Tempe, AZ Acquired 1996 R&D/Flex 5.42 1 99,418
7343 South Hardy Drive Tempe, AZ Acquired 1997 Bulk Warehouse 7.84 1 174,854
7333 South Hardy Drive Tempe, AZ Acquired 1997 Reg. Warehouse 7.90 1 98,052
-11-
146
1045 South Edward Drive Tempe, AZ Acquired 1976 Light Industrial 2.12 1 38,560
-------- ----------------------
Subtotal or
Average 35.84 6 573,988
-------- ----------------------
PORTLAND
--------
5795 SW Jean Road Lake Oswego, OR Acquired 1985 Light Industrial 3.02 3 37,352
12130 NE Ainsworth Circle Portland, OR Developed 1986 R&D/Flex 4.39 2 53,021
6105-6113 NE 92nd Avenue Portland, OR Developed 1978 Light Industrial 7.42 4 132,800
8727 NE Marx Drive Portland, OR Developed 1987 Light Industrial 6.59 3 111,000
3388 SE 20th Street Portland, OR Acquired 1981 Light Industrial 0.25 1 11,810
5962-5964 NE 87th Avenue Portland, OR Developed 1979 Light Industrial 1.28 1 14,000
116 SE Yamhill Portland, OR Acquired 1974 Light Industrial 0.23 1 7,500
9106 NE Marx Drive Portland, OR Acquired 1969 Light Industrial 0.53 1 7,500
11620 NE Ainsworth Portland, OR Developed 1992 Light Industrial 1.55 1 10,000
11824 NE Ainsworth Circle Portland, OR Developed 1992 Light Industrial 2.13 1 20,812
12124 NE Ainsworth Circle Portland, OR Developed 1984 Light Industrial 2.52 1 29,040
2715 SE Raymond Portland, OR Developed 1971 Light Industrial 1.28 1 35,000
1645 NE 72nd Avenue Portland, OR Acquired 1972 Light Industrial 0.73 1 21,600
1630 SE 8th Avenue Portland, OR Developed 1968 Light Industrial 0.92 1 5,000
9044 NE Marx Drive Portland, OR Developed 1986 Light Industrial 0.35 1 19,500
2443 SE 4th Avenue Portland, OR Acquired 1964 Light Industrial 0.76 1 27,128
711 SE Stark Street Portland, OR Developed 1972 Light Industrial 0.23 1 8,000
11632 NE Ainsworth Circle Portland, OR Developed 1990 Light Industrial 9.63 1 124,610
NE 138th & Airport Way Portland, OR Developed 1990 Light Industrial 12.91 1 49,624
14699 NE Airport Way Portland, OR Developed 1998 Light Industrial 4.75 1 20,000
-------- ----------------------
Subtotal or
Average 61.47 28 745,297
-------- ----------------------
SALT LAKE CITY
--------------
2255 South 300 West Salt Lake City, UT Acquired 1980 Light Industrial 4.56 7 103,018
512 Lawndale Drive Salt Lake City, UT Acquired 1981 Light Industrial 35.00 29 395,291
1270 West 2320 South West Valley, UT Acquired 1986 R&D/Flex 1.49 1 13,025
1275 West 2240 South West Valley, UT Acquired 1986 R&D/Flex 2.06 1 38,227
1288 West 2240 South West Valley, UT Acquired 1986 R&D/Flex 0.97 1 13,300
2235 South 1300 West West Valley, UT Acquired 1986 Light Industrial 1.22 1 19,000
1293 West 2200 South West Valley, UT Acquired 1986 R&D/Flex 0.86 1 13,300
1279 West 2200 South West Valley, UT Acquired 1986 R&D/Flex 0.91 1 13,300
1272 West 2240 South West Valley, UT Acquired 1986 Light Industrial 3.07 1 34,870
1149 West 2240 South West Valley, UT Acquired 1986 Light Industrial 1.71 1 21,250
1142 West 2320 South West Valley, UT Acquired 1997 Light Industrial 1.52 1 17,500
-------- ----------------------
Subtotal or
Average 53.37 45 682,081
-------- ----------------------
SOUTHERN NEW JERSEY
-------------------
2-5 North Olnev Ave. Cherry Hill, NJ Acquired 1963 Light Industrial 2.10 1 58,139
2 Springdale Road Cherry Hill, NJ Acquired 1968 Light Industrial 1.44 1 21,008
4 Springdale Road Cherry Hill, NJ Acquired 1963 Light Industrial 3.02 2 58,189
6 Springdale Road Cherry Hill, NJ Acquired 1964 Light Industrial 1.44 1 23,037
8 Springdale Road Cherry Hill, NJ Acquired 1966 Light Industrial 3.02 1 45,054
12 Springdale Road Cherry Hill, NJ Acquired 1965 Light Industrial 3.40 1 49,259
1 Esterbrook Lane Cherry Hill, NJ Acquired 1965 Light Industrial 1.71 1 8,610
16 Springdale Road Cherry Hill, NJ Acquired 1967 Light Industrial 5.30 1 48,922
5 Esterbrook Lane Cherry Hill, NJ Acquired 1966 Reg. Warehouse 5.45 1 39,167
2 Pin Oak Lane Cherry Hill, NJ Acquired 1968 Light Industrial 4.45 1 51,230
6 Esterbrook Lane Cherry Hill, NJ Acquired 1966 Light Industrial 3.96 1 32,914
3 Computer Drive Cherry Hill, NJ Acquired 1966 Bulk Warehouse 11.40 1 181,000
28 Springdale Road Cherry Hill, NJ Acquired 1967 Light Industrial 2.93 1 38,949
3 Esterbrook Lane Cherry Hill, NJ Acquired 1968 Light Industrial 2.15 1 32,844
4 Esterbrook Lane Cherry Hill, NJ Acquired 1969 Light Industrial 3.42 1 39,266
26 Springdale Road Cherry Hill, NJ Acquired 1968 Light Industrial 3.25 1 31,652
1 Keystone Ave. Cherry Hill, NJ Acquired 1969 Light Industrial 4.15 1 60,983
1919 Springdale Road Cherry Hill, NJ Acquired 1970 Light Industrial 5.13 1 49,300
21 Olnev Ave. Cherry Hill, NJ Acquired 1969 Manufacturing 1.75 1 22,738
19 Olnev Ave. Cherry Hill, NJ Acquired 1971 Light Industrial 4.36 1 53,962
2 Keystone Ave. Cherry Hill, NJ Acquired 1970 Light Industrial 3.47 1 50,922
18 Olnev Ave. Cherry Hill, NJ Acquired 1974 Light Industrial 8.85 1 62,542
22 Springdale Road Cherry Hill, NJ Acquired 1977 Light Industrial 6.24 1 88,872
1998 Springdale Road Cherry Hill, NJ Acquired 1971 Light Industrial 0.95 1 14,000
55 Carnegie Drive Cherry Hill, NJ Acquired 1988 Reg. Warehouse 15.20 1 90,804
57 Carnegie Drive Cherry Hill, NJ Acquired 1987 Bulk Warehouse 13.70 1 142,750
111 Whittendale Drive Morrestown, NJ Acquired 1991 Reg. Warehouse 5.00 1 79,329
-------- ----------------------
Subtotal or
Average 127.24 28 1,475,442
-------- ----------------------
ST. LOUIS
---------
-12-
147
2121 Chapin Industrial
Drive Vinita Park, MO Acquired 1969/87 Bulk Warehouse 23.40 1 281,105
1200 Andes Boulevard Olivette, MO Acquired 1967 Light Industrial 2.77 1 66,600
1248 Andes Boulevard Olivette, MO Acquired 1967 Light Industrial 3.15 1 60,708
1208-1226 Ambassador
Boulevard Olivette, MO Acquired 1966 Light Industrial 2.11 1 49,600
1503-1525 Fairview
Industrial Olivette, MO Acquired 1967 Light Industrial 2.18 1 46,481
2462-2470 Schuetz Road St. Louis, MO Acquired 1965 Light Industrial 2.28 1 43,868
10431-10449 Midwest
Industrial Blvd Olivette, MO Acquired 1967 Light Industrial 2.40 1 55,125
10751 Midwest Industrial
Boulevard Olivette, MO Acquired 1965 Light Industrial 1.70 1 44,100
11652-11666 Fairgrove
Industrial Blvd St. Louis, MO Acquired 1966 Light Industrial 1.92 1 31,500
11674-11688 Fairgrove
Industrial Blvd St. Louis, MO Acquired 1967 Light Industrial 1.53 1 31,500
2337 Centerline Drive Maryland Heights, MO Acquired 1967 Light Industrial 3.46 1 75,600
6951 N Hanley Hazelwood, MO Acquired 1965 Bulk Warehouse 9.50 2 129,614
4560 Anglum Road Hazelwood, MO Acquired 1970 Light Industrial 2.60 1 35,114
2760 South 1st Street St. Louis, MO Developed 1997 Bulk Warehouse 11.00 1 178,800
----------- -----------------------
SUBTOTAL OR AVERAGE 70.00 15 1,129,715
----------- -----------------------
TAMPA
-----
6614 Adamo Drive Tampa, FL Acquired 1967 Reg. Warehouse 2.78 1 41,377
202 Kelsey Tampa, FL Acquired 1989 Bulk Warehouse 6.30 1 112,000
6202 Benjamin Road Tampa, FL Developed 1981 R&D/Flex 2.04 1 29,845
6204 Benjamin Road Tampa, FL Developed 1982 Light Industrial 4.16 1 60,975
6206 Benjamin Road Tampa, FL Developed 1983 Light Industrial 3.94 1 57,708
6302 Benjamin Road Tampa, FL Developed 1983 R&D/Flex 2.03 1 29,747
6304 Benjamin Road Tampa, FL Developed 1984 R&D/Flex 2.04 1 29,845
6306 Benjamin Road Tampa, FL Developed 1984 Light Industrial 2.58 1 37,336
6308 Benjamin Road Tampa, FL Developed 1984 Light Industrial 3.22 1 47,256
5313 Johns Road Tampa, FL Developed 1991 R&D/Flex 1.36 1 25,690
5602 Thompson Center Court Tampa, FL Developed 1972 R&D/Flex 1.39 1 14,914
5411 Johns Road Tampa, FL Developed 1997 Light Industrial 1.98 1 30,204
5525 Johns Road Tampa, FL Developed 1993 R&D/Flex 1.46 1 24,139
5607 Johns Road Tampa, FL Developed 1991 R&D/Flex 1.34 1 13,500
5709 Johns Road Tampa, FL Developed 1990 Light Industrial 1.80 1 25,480
5711 Johns Road Tampa, FL Developed 1990 Light Industrial 1.80 1 25,455
4410 E Adamo Drive Tampa, FL Developed 1990 Bulk Warehouse 5.60 1 101,744
4420 E Adamo Drive Tampa, FL Developed 1990 Reg. Warehouse 1.40 1 26,650
4430 E Adamo Drive Tampa, FL Developed 1987 Reg. Warehouse 3.75 1 64,551
4440 E Adamo Drive Tampa, FL Developed 1988 Reg. Warehouse 3.75 1 64,800
4450 E Adamo Drive Tampa, FL Developed 1969 Reg. Warehouse 4.00 1 46,462
5453 W Waters Avenue Tampa, FL Developed 1987 R&D/Flex 0.66 1 7,200
5455 W Waters Avenue Tampa, FL Developed 1987 R&D/Flex 2.97 1 32,424
5553 W Waters Avenue Tampa, FL Developed 1987 Light Industrial 2.97 1 32,424
5501 W Waters Avenue Tampa, FL Developed 1990 R&D/Flex 1.53 1 15,870
5503 W Waters Avenue Tampa, FL Developed 1990 R&D/Flex 0.68 1 7,060
5555 W Waters Avenue Tampa, FL Developed 1990 R&D/Flex 2.31 1 23,947
5557 W Waters Avenue Tampa, FL Developed 1990 R&D/Flex 0.57 1 5,860
5903 Johns Road Tampa, FL Developed 1987 Light Industrial 1.20 1 11,600
4107 N Himes Avenue Tampa, FL Developed 1990 R&D/Flex 1.86 1 25,436
5461 W Waters Tampa, FL Developed 1998 Light Industrial 1.84 1 21,778
10040 18th Street North Tampa, FL Developed 1999 Bulk Warehouse 5.15 1 82,469
5471 W. Waters Tampa, FL Developed 1999 R&D/Flex 2.00 1 23,778
5505 John's Rd #7 Tampa, FL Developed 1999 Light Industrial 2.12 1 30,019
5481 W. Waters Avenue Tampa, FL Developed 1999 R&D/Flex 3.60 1 41,861
5483 W. Waters Avenue Tampa, FL Developed 1999 R&D/Flex 2.92 1 33,861
26 6702-6712 Benjamin Road Tampa, FL Acquired 1982 Light Industrial 9.20 6 107,540
----------- -----------------------
Subtotal or Average 100.30 42 1,412,805
----------- -----------------------
OTHER
-----
2800 Airport Road Denton, TX Acquired 1968 Manufacturing 29.91 5 222,403
3501 Maple Street Abilene, TX Acquired 1980 Manufacturing 34.42 1 123,700
4200 West Harry Street Wichita, KS Acquired 1972 Bulk Warehouse 21.45 3 177,655
Industrial Park No. 2 West Lebanon, NH Acquired 1968 Bulk Warehouse 10.27 1 156,200
931 Discovery Road Green Bay, WI Acquired 1997 Light Industrial 4.22 1 25,254
2675 Valley View Drive Shreveport, LA Developed 1997 Bulk Warehouse 12.00 1 250,000
300 10th Street NW Clarion, IA Developed 1997 Bulk Warehouse 8.63 1 126,900
6601 S. 33rd Street McAllen, TX Acquired 1975 Bulk Warehouse 3.31 1 50,000
1 9601 A Dessau Road Austin TX Developed 1999 Light Industrial 1
3.28 33,000
1 9601 B Dessau Road Austin, TX Developed 1999 Light Industrial 1
3.28 33,000
----------- -----------------------
Subtotal or Average 130.77 16 1,198,112
----------- -----------------------
TOTAL 4,431.61 883 60,328,746
=========== ========= ============
-13-
148
NOTES:
1 These properties are owned by First Industrial Financing Partnership, L.P.
2 This property is owned by Benson Avenue Land, LLC
3 These properties are owned by First Industrial Maryland, LLC
4 This property is owned by Portal Street Land, LLC
5 This property is owned by FR Maryland I, LLC
6 This property is owned by FR Maryland III, LLC
7 This property is owned by New Ridge, LLC
8 This property is owned by FR Maryland IV, LLC
9 These properties are owned by First Industrial Harrisburg, L.P.
10 These properties are owned by First Industrial Pennsylvania, L.P.
11 These properties are owned by Shamie & Shamie Development, LLC
12 These properties are owned by S. Shamie Development, LLC
13 These properties are owned by Shamie-Baloh Development, LLC
14 These properties are owned by Shamie Zimmerman Development, LLC
15 These properties are owned by Shazim, LLC
16 These properties are owned by S&P Development, LLC
17 These properties are owned by Shamie Pomeroy Development, LLC
18 These properties are owned by SPD Development, LLC
19 These properties are owned by Mound Technology Center, LLC
20 This property is owned by Troy Saks, LLC
21 This property is owned by 800 Chicago, LLC
22 This property is owned by IKS Troy, LLC
23 This property is owned by Eisenhower Corporate Park, LLC
24 These properties are owned by First Industrial Indianapolis, L.P.
25 This property is owned by First Industrial Development Services, L.P.
26 This property is owned by FR Acquisition Fund, LLC
In the case of the LLCs that hold title to properties,
First Industrial, L.P. is the sole member. In the case of
the other partnerships that hold title to properties, First
Industrial, L.P. is the limited partner and a wholly owned
subsidiary of First Industrial Realty Trust, Inc. is the general partner.
-14
149
SCHEDULE 7.8
LITIGATION (GENERAL PARTNER)
NONE
150
SCHEDULE 7.18
SUBSIDIARIES (GENERAL PARTNER)
1. FI Development Services Corporation, a Maryland corporation
2. First Industrial Finance Corporation, a Maryland corporation
3. FR Acquisitions, Inc., a Maryland corporation
4. First Industrial Pennsylvania Corporation, a Maryland corporation
5. First Industrial Harrisburg Corporation, a Maryland corporation
6. First Industrial Securities Corporation, a Maryland corporation
7. First Industrial Mortgage Corporation, a Maryland corporation
8. First Industrial Indianapolis Corporation, a Maryland corporation
9. First Industrial Florida Finance Corporation
NOTE:
1. Each of these entities is 100% wholly owned by the General Partner.
2. None of these entities owns any properties.
-2-
151
TABLE OF CONTENTS
PAGE
EXHIBITS
A - Percentages
B-1 - Form of Note
B-2 - Form of Competitive Bid Note
C-1 - Form of Competitive Bid Quote Request
C-2 - Invitation for Competitive Bid Quotes
C-3 - Competitive Bid Quote
D - Form of Guaranty
E - Opinion of Borrower's Counsel
F - Opinion of General Partner's Counsel
G - Wiring Instructions
H - Form of Compliance Certificate
I - Scope of Work for Environmental Investigations
J - Form of Assignment Agreement
K - Form of Designation Agreement
L - Form of Amendment
SCHEDULES
6.9 Litigation (Borrower)
6.19 Environmental Compliance
6.24 Trade Names
6.25 Subsidiaries (Borrower)
6.26 Unencumbered Assets
7.8 Litigation (General Partner)
7.18 Subsidiaries (General Partner)
1
EXHIBIT 10.2
TWELFTH AMENDMENT TO
SIXTH AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT OF
FIRST INDUSTRIAL, L.P.
As of June 27, 2000, the undersigned, being the sole general partner of
First Industrial, L.P. (the "PARTNERSHIP"), a limited partnership formed under
the Delaware Revised Uniform Limited Partnership Act and pursuant to the terms
of that certain Sixth Amended and Restated Limited Partnership Agreement, dated
March 18, 1998, as later amended (as amended, the "PARTNERSHIP AGREEMENT"), does
hereby amend the Partnership Agreement as follows:
Capitalized terms used but not defined in this Twelfth Amendment shall
have the same meanings that are ascribed to them in the Partnership Agreement.
1. ADDITIONAL LIMITED PARTNERS. The Persons identified on SCHEDULE 1
hereto are hereby admitted to the Partnership as Substituted Limited Partners or
Additional Limited Partners, as the case may be, owning the number of Units and
having made the Capital Contributions set forth on such SCHEDULE 1. Such persons
hereby adopt the Partnership Agreement. The undersigned acknowledges that those
of the Persons identified on SCHEDULE 1 hereto that are Substituted Limited
Partners have received their Partnership Interests from various Additional
Limited Partners, and the undersigned hereby consents to such transfers.
2. SCHEDULE OF PARTNERS. EXHIBIT 1B to the Partnership Agreement is
hereby deleted in its entirety and replaced by EXHIBIT 1B hereto which
identifies the Partners following consummation of the transactions referred to
in Section 1 hereof.
3. RATIFICATION. Except as expressly modified by this Twelfth
Amendment, all of the provisions of the Partnership Agreement are affirmed and
ratified and remain in full force and effect.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE IMMEDIATELY FOLLOWS]
2
IN WITNESS WHEREOF, the undersigned has executed this Twelfth Amendment
as of the date first written above.
FIRST INDUSTRIAL REALTY TRUST, INC.,
as sole general partner of the Partnership
By: /s/ Johannson Yap
-------------------------------------
Name: Johannson Yap
-----------------------------
Title: Chief Investment Officer
-----------------------------
2
3
EXHIBIT 1B
SCHEDULE OF PARTNERS
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Kerry Acker 154
- -------------------------------------------------------------------------- -------------------------------------------
Sanders H. Acker 307
- -------------------------------------------------------------------------- -------------------------------------------
Aimee Freyer Lifetime Trust Dated 11/1/65 Deposit 2,384
Guaranty National Bank Trustee
- -------------------------------------------------------------------------- -------------------------------------------
Daniel R. Andrew TR of the Daniel R. Andrew Trust U-A 12-29-92 137,489
- -------------------------------------------------------------------------- -------------------------------------------
Charles T. Andrews 754
- -------------------------------------------------------------------------- -------------------------------------------
The Arel Company 307
- -------------------------------------------------------------------------- -------------------------------------------
William J. Atkins 22,381
- -------------------------------------------------------------------------- -------------------------------------------
E. Donald Bafford 3,374
- -------------------------------------------------------------------------- -------------------------------------------
William Baloh 10,731
- -------------------------------------------------------------------------- -------------------------------------------
Edward N. Barad 1,141
- -------------------------------------------------------------------------- -------------------------------------------
Emil Billich 77
- -------------------------------------------------------------------------- -------------------------------------------
Don N. Blurton & Particia H. Blurton Trustees U-A 598
DTD 04-11-96 Blurton 1996 Revocable Family Trust
- -------------------------------------------------------------------------- -------------------------------------------
James Bolt 6,048
- -------------------------------------------------------------------------- -------------------------------------------
Michael W. Brennan 3,806
- -------------------------------------------------------------------------- -------------------------------------------
Alvin R. Brown & Helen Brown Jt Ten 307
- -------------------------------------------------------------------------- -------------------------------------------
Robert Brown 2,123
- -------------------------------------------------------------------------- -------------------------------------------
Henry D. Bullock & Terri D. Bullock & Shawn Stevenson Trust of the 2,670
Bullock Childrens Education Trust U-A 12-20-94 F-B-O Benjamin Dure
Bullock
- -------------------------------------------------------------------------- -------------------------------------------
Henry D. Bullock & Terri D. Bullock & Shawn Stevenson TR of the Bullock 2,670
Childrens Education Trust U-A 12-20-94 F-B-O Christine Laurel Bullock
- -------------------------------------------------------------------------- -------------------------------------------
1B-1
4
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Henry D. Bullock & Terri D. Bullock TR of the Henry D. 6,766
& Terri D. Bullock Trust U-A 08-28-92
- -------------------------------------------------------------------------- -------------------------------------------
Edward Burger 9,261
- -------------------------------------------------------------------------- -------------------------------------------
Ernestine Burstyn 5,007
- -------------------------------------------------------------------------- -------------------------------------------
Calamer, Inc. 1,233
- -------------------------------------------------------------------------- -------------------------------------------
Perry C. Caplan 1,388
- -------------------------------------------------------------------------- -------------------------------------------
Carol P. Freyer Lifetime Trust Dated 11/1/72 Deposit Guaranty National 2,384
Bank Trustee
- -------------------------------------------------------------------------- -------------------------------------------
The Carthage Partners LC 34,939
- -------------------------------------------------------------------------- -------------------------------------------
Magdalena G. Castleman 307
- -------------------------------------------------------------------------- -------------------------------------------
Chester A. Latcham & Co. 2,493
- -------------------------------------------------------------------------- -------------------------------------------
Terrance C. Claassen 1,095
- -------------------------------------------------------------------------- -------------------------------------------
Cliffwood Development Company 64,823
- -------------------------------------------------------------------------- -------------------------------------------
Collins Family Trust Dated 5/6/69 James Collins Trustee 162,985
- -------------------------------------------------------------------------- -------------------------------------------
Kelly Collins 11,116
- -------------------------------------------------------------------------- -------------------------------------------
Michael Collins 17,369
- -------------------------------------------------------------------------- -------------------------------------------
Community Foundation of North Texas Inc. 4,000
- -------------------------------------------------------------------------- -------------------------------------------
Charles S. Cook & Shelby H. Cook Ten Ent 634
- -------------------------------------------------------------------------- -------------------------------------------
Caroline Atkins Coutret 7,327
- -------------------------------------------------------------------------- -------------------------------------------
David Cleborne Crow 5,159
- -------------------------------------------------------------------------- -------------------------------------------
Gretchen Smith Crow 2,602
- -------------------------------------------------------------------------- -------------------------------------------
Michael G. Damone TR of the Michael G. Damone Trust U-A 11-4-69 144,296
- -------------------------------------------------------------------------- -------------------------------------------
Debbie Schneeman & Susan Lebow Trustees of the Roslyn Greenberg 1992 2,250
Trust
- -------------------------------------------------------------------------- -------------------------------------------
Robert L. Denton, c/o The Shidler Group 6,286
- -------------------------------------------------------------------------- -------------------------------------------
Steven Dizio & Helen Dizio Jt Ten 12,358
- -------------------------------------------------------------------------- -------------------------------------------
1B-2
5
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
W. Allen Doane TR of the W. Allen Doane Trust U-A 05-31-91 4,416
- -------------------------------------------------------------------------- -------------------------------------------
Timothy Donohue 1,000
- -------------------------------------------------------------------------- -------------------------------------------
Darwin B. Dosch 1,388
- -------------------------------------------------------------------------- -------------------------------------------
Charles F. Downs 1,508
- -------------------------------------------------------------------------- -------------------------------------------
Greg & Christina Downs Jt Ten 474
- -------------------------------------------------------------------------- -------------------------------------------
Gregory Downs 48
- -------------------------------------------------------------------------- -------------------------------------------
Draizin Family Partnership LP 357,896
- -------------------------------------------------------------------------- -------------------------------------------
Joseph S. Dresner, c/o The Highland Companies 149,531
- -------------------------------------------------------------------------- -------------------------------------------
James O'Neil Duffy Jr. 513
- -------------------------------------------------------------------------- -------------------------------------------
Martin Eglow 330
- -------------------------------------------------------------------------- -------------------------------------------
Enid Barden TTEE of the Enid Barden Trust of June 28 1996 23,088
- -------------------------------------------------------------------------- -------------------------------------------
BSDK Enterprises 3,596
- -------------------------------------------------------------------------- -------------------------------------------
ESAA Associates Limited Partnership, a Michigan Limited Partnership 24,217
- -------------------------------------------------------------------------- -------------------------------------------
Estate of Albert Sklar 3,912
Miriam M. Sklar Executrix
- -------------------------------------------------------------------------- -------------------------------------------
Rand H. Falbaum 17,022
- -------------------------------------------------------------------------- -------------------------------------------
Donald C. Thompson TTEE U-A DTD 12/31/98 FBO Donald C. Thompson 39,243
Revocable Family Trust
- -------------------------------------------------------------------------- -------------------------------------------
James Kozen TTEE U-A DTD 02/24/86 FBO James I Kozen Family Trust 33,031
- -------------------------------------------------------------------------- -------------------------------------------
Farlow Road Associates Limited Partnership 2,751
- -------------------------------------------------------------------------- -------------------------------------------
Rowena Finke 154
- -------------------------------------------------------------------------- -------------------------------------------
First Industrial Realty Trust Inc. 30,892,739
- -------------------------------------------------------------------------- -------------------------------------------
Elizabeth Fitzpatrick 3,800
- -------------------------------------------------------------------------- -------------------------------------------
Fourbur Family Co. LP, a New York Limited Partnership 588,273
- -------------------------------------------------------------------------- -------------------------------------------
1B-3
6
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Fred Trust Dated 6/16/77 653
Charles L. Williams Trustee
- -------------------------------------------------------------------------- -------------------------------------------
Frederick K ITO & June Y I ITO Trustees U-A DTD 9/9/98 FBO the June Y I 1,940
ITO Trust
- -------------------------------------------------------------------------- -------------------------------------------
Frederick K ITO TTEE U-A DTD 9/9/98 FBO The Frederick K. ITO Trust 1940
- -------------------------------------------------------------------------- -------------------------------------------
Carol P. Freyer 12,173
Lee Karen Freyer
- -------------------------------------------------------------------------- -------------------------------------------
Aimee Freyer-Valls 12,173
- -------------------------------------------------------------------------- -------------------------------------------
David Fried 1,326
- -------------------------------------------------------------------------- -------------------------------------------
Ester Fried 3,177
- -------------------------------------------------------------------------- -------------------------------------------
Nancy Gabel 14
- -------------------------------------------------------------------------- -------------------------------------------
J. Peter Gaffney 727
- -------------------------------------------------------------------------- -------------------------------------------
Gerlach Family Trust Dated 6/28/85 874
Stanley & Linda Gerlach Trustees
- -------------------------------------------------------------------------- -------------------------------------------
Patricia O. Godchaux 9387
- -------------------------------------------------------------------------- -------------------------------------------
Martin Goodstein 922
- -------------------------------------------------------------------------- -------------------------------------------
Dennis G. Goodwin & Jeannie L. Goodwin Ten Ent 6,166
- -------------------------------------------------------------------------- -------------------------------------------
Jeffrey L. Greenberg 330
- -------------------------------------------------------------------------- -------------------------------------------
Stanley Greenberg & Florence Greenberg Jt Ten 307
- -------------------------------------------------------------------------- -------------------------------------------
Stanley Gruber 30,032
- -------------------------------------------------------------------------- -------------------------------------------
Mellissa C. Gudim 24,028
- -------------------------------------------------------------------------- -------------------------------------------
Timothy Gudim 10,298
- -------------------------------------------------------------------------- -------------------------------------------
H. L. Investors LLC 4,000
- -------------------------------------------------------------------------- -------------------------------------------
H/Airport GP Inc. 1433
- -------------------------------------------------------------------------- -------------------------------------------
Clay Hamlin & Lynn Hamlin Jt Ten 15,159
- -------------------------------------------------------------------------- -------------------------------------------
Martha J. Harbison 3,329
- -------------------------------------------------------------------------- -------------------------------------------
1B-4
7
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Harriet Bonn TTEE U-A DTD 3/5/97 FBO The Harriet Bonn Revocable Living 24,804
Trust
- -------------------------------------------------------------------------- -------------------------------------------
Turner Harshaw 1,132
- -------------------------------------------------------------------------- -------------------------------------------
Frank Harvey 2,501
- -------------------------------------------------------------------------- -------------------------------------------
Henry E. Dietz Trust U-A 01-16-81 36,476
- -------------------------------------------------------------------------- -------------------------------------------
Cathleen Hession 3,137
- -------------------------------------------------------------------------- -------------------------------------------
Edwin Hession & Cathleen Hession Jt Ten 7,979
- -------------------------------------------------------------------------- -------------------------------------------
Highland Associates Limited Partnership 69,039
- -------------------------------------------------------------------------- -------------------------------------------
Leland A. Hodges & Margery Ann Hodges Jt Ten 55,000
- -------------------------------------------------------------------------- -------------------------------------------
Andrew Holder 97
- -------------------------------------------------------------------------- -------------------------------------------
Ruth Holder 2,612
- -------------------------------------------------------------------------- -------------------------------------------
Robert W. Holman Jr. 1,048
- -------------------------------------------------------------------------- -------------------------------------------
Robert W. Holman Jr. 149,165
- -------------------------------------------------------------------------- -------------------------------------------
Holman/Shidler Investment Corporation 14,351
- -------------------------------------------------------------------------- -------------------------------------------
Holman/Shidler Investment Corporation 7,728
- -------------------------------------------------------------------------- -------------------------------------------
Howard Trust Dated 4/30/79 Howard F. Sklar Trustee 653
- -------------------------------------------------------------------------- -------------------------------------------
Steven B. Hoyt 175,000
- -------------------------------------------------------------------------- -------------------------------------------
Jerry Hymowitz 307
- -------------------------------------------------------------------------- -------------------------------------------
Karen L. Hymowitz 154
- -------------------------------------------------------------------------- -------------------------------------------
Seymour Israel 15,016
- -------------------------------------------------------------------------- -------------------------------------------
Jack Friedman TR of the Jack Friedman Revocable Living Trust U A 03-23-78 26,005
- -------------------------------------------------------------------------- -------------------------------------------
Michael W. Jenkins 460
- -------------------------------------------------------------------------- -------------------------------------------
1B-5
8
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Jernie Holdings Corp. 180,499
- -------------------------------------------------------------------------- -------------------------------------------
Joan R. Krieger TTEE of the Joan R. Krieger Revocable Trust DTD 10/21/97 15,184
- -------------------------------------------------------------------------- -------------------------------------------
John A. and Gloria H. Sage Family Trust UDT Dated 6/7/94 Johan A. and 15,864
Gloria H. Sage Co-Trustees
- -------------------------------------------------------------------------- -------------------------------------------
John E. DE B. Blockey TR of The John E. DE B. Blockey Trust 8,653
- -------------------------------------------------------------------------- -------------------------------------------
L. Chris Johnson 3,196
- -------------------------------------------------------------------------- -------------------------------------------
Johnson Living Trust Dated 2/18/83 H. Stanton & Carol A. Johnson Trustees 1,078
- -------------------------------------------------------------------------- -------------------------------------------
Thomas Johnson Jr. & Sandra L. Johnson Ten Ent 2,142
- -------------------------------------------------------------------------- -------------------------------------------
Charles Mark Jordan 57
- -------------------------------------------------------------------------- -------------------------------------------
JPG Investment 919
- -------------------------------------------------------------------------- -------------------------------------------
Nourhan Kailian 2,183
- -------------------------------------------------------------------------- -------------------------------------------
Armenag Kalaydjian TTEE of The Armenag Kalaydjian Revocable TR 7,079
Agreement dated 02/28/1984
- -------------------------------------------------------------------------- -------------------------------------------
H. L. Kaltenbacher P P Kaltenbacher & J K Carr TTEES of the Joseph C. 1,440
Kaltenbacher Credit Shelther TR
- -------------------------------------------------------------------------- -------------------------------------------
Sarsh Katz 307
- -------------------------------------------------------------------------- -------------------------------------------
Carol F. Kaufman 166
- -------------------------------------------------------------------------- -------------------------------------------
KEP LLC, a Michigan Limited Liability Company 98,626
- -------------------------------------------------------------------------- -------------------------------------------
Peter Kepic 9,261
- -------------------------------------------------------------------------- -------------------------------------------
Jack Kindler 1,440
- -------------------------------------------------------------------------- -------------------------------------------
Kirshner Family Trust #1 dated 4/8/76 29,558
Berton & Barbara Kirshner Trustees
- -------------------------------------------------------------------------- -------------------------------------------
1B-6
9
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Kirshner Trust #4 FBO TODD Kirshner dated 12/30/76 20,258
Berton Kirshner Trustee
- -------------------------------------------------------------------------- -------------------------------------------
Arthur Kligman 307
- -------------------------------------------------------------------------- -------------------------------------------
William L. Kreiger Jr. 3,374
- -------------------------------------------------------------------------- -------------------------------------------
Babette Kulka 330
- -------------------------------------------------------------------------- -------------------------------------------
Jack H. Kulka 330
- -------------------------------------------------------------------------- -------------------------------------------
Lambert Investment Corporation 13,606
- -------------------------------------------------------------------------- -------------------------------------------
Paul T. Lambert 32,470
- -------------------------------------------------------------------------- -------------------------------------------
Paul T. Lambert 7,346
- -------------------------------------------------------------------------- -------------------------------------------
Constancy Lazarus 417,961
- -------------------------------------------------------------------------- -------------------------------------------
Jerome Lazarus 18,653
- -------------------------------------------------------------------------- -------------------------------------------
Susan Lebow 740
- -------------------------------------------------------------------------- -------------------------------------------
Lee Karen Freyer Lifetime Trust Dated 11/1/65 Deposit 2,384
Guaranty National Bank Trustee
- -------------------------------------------------------------------------- -------------------------------------------
Arron Leifer 4,801
- -------------------------------------------------------------------------- -------------------------------------------
Georgia Leonard 664
- -------------------------------------------------------------------------- -------------------------------------------
Robert Leonard III 6,317
- -------------------------------------------------------------------------- -------------------------------------------
Steve Leonard 4,781
- -------------------------------------------------------------------------- -------------------------------------------
Leslie A. Rubin Ltd. 4,048
- -------------------------------------------------------------------------- -------------------------------------------
H P Family Group LLC 103,734
- -------------------------------------------------------------------------- -------------------------------------------
J P Trusts LLC 35,957
- -------------------------------------------------------------------------- -------------------------------------------
1B-7
10
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
L P Family Group LLC 102,249
- -------------------------------------------------------------------------- -------------------------------------------
Princeton South at Lawrenceville LLC 4,692
- -------------------------------------------------------------------------- -------------------------------------------
Sealy Professional Drive LLC 2,906
- -------------------------------------------------------------------------- -------------------------------------------
Sealy Unitholder LLC 31,552
- -------------------------------------------------------------------------- -------------------------------------------
SPM Industrial LLC 5,262
- -------------------------------------------------------------------------- -------------------------------------------
Shidler Equities LP 217,163
- -------------------------------------------------------------------------- -------------------------------------------
Shidler Equities LP 37,378
- -------------------------------------------------------------------------- -------------------------------------------
Duane Lund 617
- -------------------------------------------------------------------------- -------------------------------------------
Barbara Lusen 307
- -------------------------------------------------------------------------- -------------------------------------------
Stephen Mann 12,017
- -------------------------------------------------------------------------- -------------------------------------------
R. Craig Martin 754
- -------------------------------------------------------------------------- -------------------------------------------
J. Stanley Mattison 79
- -------------------------------------------------------------------------- -------------------------------------------
Henry E. Mawicke 636
- -------------------------------------------------------------------------- -------------------------------------------
Richard McClintock 623
- -------------------------------------------------------------------------- -------------------------------------------
McElroy Management Inc. 5,478
- -------------------------------------------------------------------------- -------------------------------------------
MCS Properties, Inc. 5,958
- -------------------------------------------------------------------------- -------------------------------------------
Eileen Millar 3,072
- -------------------------------------------------------------------------- -------------------------------------------
Larry L. Miller 17,857
- -------------------------------------------------------------------------- -------------------------------------------
Linda Miller 2,000
- -------------------------------------------------------------------------- -------------------------------------------
1B-8
11
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Milton H. Dresner TR of the Milton Dresner Revocable 149,531
Trust U A 10-22-76
- -------------------------------------------------------------------------- -------------------------------------------
Lila Atkins Mulkey 7,327
- -------------------------------------------------------------------------- -------------------------------------------
Peter Murphy 56,184
- -------------------------------------------------------------------------- -------------------------------------------
Anthony Muscatello 81,654
- -------------------------------------------------------------------------- -------------------------------------------
James Muslow Jr. 4,911
- -------------------------------------------------------------------------- -------------------------------------------
Joseph Musti 1,508
- -------------------------------------------------------------------------- -------------------------------------------
Dean A. Nachigall 10,076
- -------------------------------------------------------------------------- -------------------------------------------
Adel Nassif 5,218
- -------------------------------------------------------------------------- -------------------------------------------
New Land Associates Limited Partnership 1,664
- -------------------------------------------------------------------------- -------------------------------------------
Kris Nielsen 178
- -------------------------------------------------------------------------- -------------------------------------------
North Start Associates Limited Partnership 19,333
- -------------------------------------------------------------------------- -------------------------------------------
George F. Obrecht 5,289
- -------------------------------------------------------------------------- -------------------------------------------
Paul F. Obrecht 5,289
- -------------------------------------------------------------------------- -------------------------------------------
Richard F. Obrecht 5,289
- -------------------------------------------------------------------------- -------------------------------------------
Thomas F. Obrecht 5,289
- -------------------------------------------------------------------------- -------------------------------------------
Catherine A. O'Brien 832
- -------------------------------------------------------------------------- -------------------------------------------
Martha E. O'Brien 832
- -------------------------------------------------------------------------- -------------------------------------------
Arden O'Connor 13,845
- -------------------------------------------------------------------------- -------------------------------------------
Peter O'Connor 66,181
- -------------------------------------------------------------------------- -------------------------------------------
1B-9
12
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Steve Ohren 33,366
- -------------------------------------------------------------------------- -------------------------------------------
Princeton South at Lawrenceville One 4,426
- -------------------------------------------------------------------------- -------------------------------------------
P & D Partners LP 1,440
- -------------------------------------------------------------------------- -------------------------------------------
Peegee L P 4,817
- -------------------------------------------------------------------------- -------------------------------------------
Pacifica Holding Company 97,870
- -------------------------------------------------------------------------- -------------------------------------------
Partridge Road Associates Limited Partnership 2,751
- -------------------------------------------------------------------------- -------------------------------------------
Sybil T. Patten 1,816
- -------------------------------------------------------------------------- -------------------------------------------
Lawrence Peters 960
- -------------------------------------------------------------------------- -------------------------------------------
Betty S. Phillips 3,912
- -------------------------------------------------------------------------- -------------------------------------------
Jeffrey Pion 2,879
- -------------------------------------------------------------------------- -------------------------------------------
Pipkin Family Trust dated 10/6/89 3,140
Chester & Janice Pipkin Trustees
- -------------------------------------------------------------------------- -------------------------------------------
Peter M. Polow 557
- -------------------------------------------------------------------------- -------------------------------------------
Francis Pomar 8,338
- -------------------------------------------------------------------------- -------------------------------------------
Keith J. Pomeroy TTEE of Keigh J. Pomeroy Revocable 161,036
TR Agreement DTD 12/13/76 Amended & Restated
06/28/95
- -------------------------------------------------------------------------- -------------------------------------------
Robert J. Powers 37,674
- -------------------------------------------------------------------------- -------------------------------------------
Manor Properties 143,408
- -------------------------------------------------------------------------- -------------------------------------------
Abraham Punia Individually and to the Admission of 307
Abraham Punia
- -------------------------------------------------------------------------- -------------------------------------------
R E A Associates 8,908
- -------------------------------------------------------------------------- -------------------------------------------
1B-10
13
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Richard Rapp 23
- -------------------------------------------------------------------------- -------------------------------------------
RBZ LLC, a Michigan Limited Liability Company 155
- -------------------------------------------------------------------------- -------------------------------------------
Jack F. Ream 1,071
- -------------------------------------------------------------------------- -------------------------------------------
Reger Investment Fund Ltd. 22,556
- -------------------------------------------------------------------------- -------------------------------------------
Seymour D. Reich 154
- -------------------------------------------------------------------------- -------------------------------------------
Glenn C. Rexroth & Linda A. Rexroth Ten ENT 2,142
- -------------------------------------------------------------------------- -------------------------------------------
Elizabeth Hutton Hagenn Fitzpatrick IRA Dated 9/1/91 607
Custodian Dean Witter Reynolds
- -------------------------------------------------------------------------- -------------------------------------------
James C. Reynolds 2,569
- -------------------------------------------------------------------------- -------------------------------------------
James C. Reynolds 37,715
- -------------------------------------------------------------------------- -------------------------------------------
Andre G. Richard 1,508
- -------------------------------------------------------------------------- -------------------------------------------
RJB Ford City Limited Partnership an Illinois Limited 158,438
Partnership
- -------------------------------------------------------------------------- -------------------------------------------
RJB II Limited Partnership an Illinois Limited Partnership 40,788
- -------------------------------------------------------------------------- -------------------------------------------
Robert S. Hood Living Trust Dated 1/9/90 & Amended 3,591
12/16/96 Robert S. Hood Trustee
- -------------------------------------------------------------------------- -------------------------------------------
Edward C. Roberts & Rebecca S. Roberts TEN ENT 8,308
- -------------------------------------------------------------------------- -------------------------------------------
W F O Rosenmiller 634
- -------------------------------------------------------------------------- -------------------------------------------
James Sage 2,156
- -------------------------------------------------------------------------- -------------------------------------------
Kathleen Sage 3,350
- -------------------------------------------------------------------------- -------------------------------------------
Sam Shamie Trustee of the Sam Shamie Trust Agreement 422,340
Dated March 16, 1978 as Restated November 16, 1993
- -------------------------------------------------------------------------- -------------------------------------------
1B-11
14
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Wilton Wade Sample 5,449
- -------------------------------------------------------------------------- -------------------------------------------
Edward Jon Sarama 634
- -------------------------------------------------------------------------- -------------------------------------------
Henry J. Satsky 2,708
- -------------------------------------------------------------------------- -------------------------------------------
Debbie B. Schneeman 740
- -------------------------------------------------------------------------- -------------------------------------------
Norma A. Schulze 307
- -------------------------------------------------------------------------- -------------------------------------------
Sealy & Company Inc. 37,119
- -------------------------------------------------------------------------- -------------------------------------------
Sealy Florida Inc. 675
- -------------------------------------------------------------------------- -------------------------------------------
Mark P. Sealy 8,451
- -------------------------------------------------------------------------- -------------------------------------------
Sealy Real Estate Services Inc. 148,478
- -------------------------------------------------------------------------- -------------------------------------------
Scott P. Sealy 40,902
- -------------------------------------------------------------------------- -------------------------------------------
Shadeland Associates Limited Partnership 42,976
- -------------------------------------------------------------------------- -------------------------------------------
Shadeland Corporation 4,442
- -------------------------------------------------------------------------- -------------------------------------------
Marilyn Rangel IRA dated 2/5/86 969
Custodian Smith Barney Shearson
- -------------------------------------------------------------------------- -------------------------------------------
Garrett E. Sheehan 513
- -------------------------------------------------------------------------- -------------------------------------------
Jay H. Shidler 63,604
- -------------------------------------------------------------------------- -------------------------------------------
Jay H. Shidler 4,416
- -------------------------------------------------------------------------- -------------------------------------------
Jay H. Shidler & Wallette A. Shidler TEN ENT 1,223
- -------------------------------------------------------------------------- -------------------------------------------
Siskel Family Partnership 11,359
- -------------------------------------------------------------------------- -------------------------------------------
D W Sivers Co. 106,875
- -------------------------------------------------------------------------- -------------------------------------------
1B-12
15
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
D W Sivers Co. 11,390
- -------------------------------------------------------------------------- -------------------------------------------
Dennis W. Sivers 26,920
- -------------------------------------------------------------------------- -------------------------------------------
Dennis W. Sivers 716
- -------------------------------------------------------------------------- -------------------------------------------
Sivers Family Real Property 11,447
- -------------------------------------------------------------------------- -------------------------------------------
Sivers Family Real Property Limited Liability Company 615
- -------------------------------------------------------------------------- -------------------------------------------
Sivers Investment Partnership 266,361
- -------------------------------------------------------------------------- -------------------------------------------
Sivers Investment Partnership 17,139
- -------------------------------------------------------------------------- -------------------------------------------
Michael B. Slade 2,829
- -------------------------------------------------------------------------- -------------------------------------------
Kevin Smith 13,571
- -------------------------------------------------------------------------- -------------------------------------------
Steve Smith 386
- -------------------------------------------------------------------------- -------------------------------------------
Arnold R. Sollar Executor of The Estate of Dorothy Sollar 307
- -------------------------------------------------------------------------- -------------------------------------------
Spencer and Company 154
- -------------------------------------------------------------------------- -------------------------------------------
SRS Partnership 2,142
- -------------------------------------------------------------------------- -------------------------------------------
Robert Stein TTEE U-A DTD 5-21-96 FBO Robert Stein 63,630
- -------------------------------------------------------------------------- -------------------------------------------
S. Larry Stein 63,630
- -------------------------------------------------------------------------- -------------------------------------------
Sterling Alsip Trust dated August 1, 1989 Donald 794
W. Schaumberger Trustee
- -------------------------------------------------------------------------- -------------------------------------------
Sterling Family Trust dated 3/27/80 Donald & Valerie A 3,559
Sterling Trustees
- -------------------------------------------------------------------------- -------------------------------------------
Jonathan Stott 80,026
- -------------------------------------------------------------------------- -------------------------------------------
Victor Strauss 77
- -------------------------------------------------------------------------- -------------------------------------------
1B-13
16
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Mitchell Sussman 410
- -------------------------------------------------------------------------- -------------------------------------------
Thelma C. Gretzinger Trust 450
- -------------------------------------------------------------------------- -------------------------------------------
Thomas K. Barad & Jill E. Barad Co-TTEES of the Thomas K. Barad & Jill 2,283
E. Barad Trust Dates 10-18-89
- -------------------------------------------------------------------------- -------------------------------------------
Michael T. Tomasz Trustee of the Michael T. Tomasz Trust U-A DTD 02-05-90 36,033
- -------------------------------------------------------------------------- -------------------------------------------
Barry L. Tracey 2,142
- -------------------------------------------------------------------------- -------------------------------------------
TUT Investments I LLC 5,274
- -------------------------------------------------------------------------- -------------------------------------------
William S. Tyrrell 2,906
- -------------------------------------------------------------------------- -------------------------------------------
Vivian M. Hack TTEE U-A DTD 12/16/97 FBO the Vivian M. Hack Living Trust 22,522
- -------------------------------------------------------------------------- -------------------------------------------
Steve Walbridge 338
- -------------------------------------------------------------------------- -------------------------------------------
James J. Warfield 330
- -------------------------------------------------------------------------- -------------------------------------------
Charles Kendall Jr. Rollover IRA Dated 1/21/93 Custodian Paine Webber 656
- -------------------------------------------------------------------------- -------------------------------------------
Wendel C. Sivers Marital Trust U W D 02/20/81 Dennis W. Sivers & G. 13,385
Burke Mims Co-TTEES
- -------------------------------------------------------------------------- -------------------------------------------
Wendell C. Sivers Marital Trust U W D 02/20/81 Dennis W. Sivers & G. 635
Burke MIMS Co-TTEES
- -------------------------------------------------------------------------- -------------------------------------------
William B. Wiener Jr. 41,119
- -------------------------------------------------------------------------- -------------------------------------------
Patricia Wiener-Shifke 12,944
- -------------------------------------------------------------------------- -------------------------------------------
William J. Mallen Trust Dated 4/29/94 William J. Mallen Trustee 8,016
- -------------------------------------------------------------------------- -------------------------------------------
Wilson Management Company LLC 35,787
- -------------------------------------------------------------------------- -------------------------------------------
Elmer H. Wingate Jr. 1,688
- -------------------------------------------------------------------------- -------------------------------------------
1B-14
17
- -------------------------------------------------------------------------- -------------------------------------------
NAME NUMBER OF UNITS
- -------------------------------------------------------------------------- -------------------------------------------
Worlds Fair Partners Limited Partnership 1,664
- -------------------------------------------------------------------------- -------------------------------------------
Woslum Inc. 2,427
- -------------------------------------------------------------------------- -------------------------------------------
WSW 1998 Exchange Fund LP 32,000
- -------------------------------------------------------------------------- -------------------------------------------
Sam L. Yaker TTEE of the Sam L. Yaker Revocable TR Agreement DTD 37,870
02/14/1984
- -------------------------------------------------------------------------- -------------------------------------------
Johannson Yap 1680
- -------------------------------------------------------------------------- -------------------------------------------
Richard H. Zimmerman Trustee of the Richard H. Zimmerman Living Trust 58,988
Dated October 15, 1990 as amended
- -------------------------------------------------------------------------- -------------------------------------------
Gerald & Sharon Zuckerman Jt Ten 615
- -------------------------------------------------------------------------- -------------------------------------------
1B-15
18
SCHEDULE 1
Additional
Limited Partners Number of Units Capital Contribution
---------------- --------------- --------------------
Larry L. Miller 17,857 $589,281
1-1
1
EXHIBIT 10.3
MICHAEL J. HAVALA
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), is made and entered into
as of the 19 day of July, 2000 (the "Effective Date"), by and between First
Industrial Realty Trust, Inc., a Maryland corporation (the "Employer"), and
Michael J. Havala (the "Executive").
RECITALS
A. The Employer desires to employ the Executive as an officer of the
Employer for a specified term.
B. The Executive is willing to accept such employment, upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements hereinafter contained, it is covenanted and agreed by and between
the parties hereto as follows:
AGREEMENTS
1. POSITION AND DUTIES. The Employer hereby employs the Executive as
Chief Financial Officer of the Employer, or in such other comparable or other
capacity as shall be mutually agreed between the Employer and the Executive by
amendment of this Agreement. During the period of the Executive's employment
hereunder, the Executive shall devote his best efforts and full business time
(excluding any periods of disability, vacation, sick leave or other leave to
which the Executive is entitled), energy, skills and attention to the business
and affairs of the Employer, on an exclusive basis. The Executive's duties and
authority shall consist of and include all duties and authority customarily
performed and held by persons holding equivalent positions with real estate
investment trusts ("REIT's") similar in nature and size to the Employer, as such
duties and authority are reasonably defined, modified and delegated from time to
time by the Chief Executive Officer of the Employer (the "CEO"). The Executive
shall have the powers necessary to perform the duties assigned to him, and shall
be provided such supporting services, staff, secretarial and other assistance,
office space and accouterments as shall be reasonably necessary and appropriate
in light of such assigned duties, as determined by the CEO, but in any event
shall be no less favorable to the Executive than such supporting services,
assistance, office space and accouterments provided to other Senior Headquarters
Executives (as defined in Section 2(c) below) of the Employer.
2. COMPENSATION. As compensation for the services to be provided by
the Executive hereunder, the Executive shall receive the following compensation
and other benefits:
(a) BASE SALARY. The Executive shall receive a minimum aggregate
annual "Base Salary" at the rate of Two Hundred and Sixty-five Thousand Dollars
($265,000) per
2
annum, payable in periodic installments in accordance with the regular payroll
practices of the Employer. Such Base Salary shall, during the term hereof, be
subject to discretionary increase (but not decrease), on an annual fiscal year
basis, as recommended by the CEO and approved by the Compensation Committee of
the Board of Directors of the Employer (the "Compensation Committee"), in
accordance with the Employer's compensation policies, as they may be established
from time to time. After any such increase, "Base Salary" shall refer to the
increased amount and shall not thereafter be reduced.
(b) PERFORMANCE BONUS. The Executive may receive an annual
"Performance Bonus," payable within sixty (60) days after the end of the fiscal
year of the Employer. The amount (if any) of and the form of the entitlements
(i.e., cash, equity-based awards, or a combination of cash and equity-based
awards) comprising any annual Performance Bonus shall be as recommended by the
CEO and approved by the Compensation Committee in its sole discretion; shall not
be subject to any minimum or guaranteed amount; and shall be generally based on
a combination of company-wide and individual performance criteria. The
Executive's "Maximum Bonus Percentages" are set forth in Exhibit A to this
Agreement. Prior to January 1 of each calendar year, the Executive shall provide
the CEO with a written "Personal Achievement Plan" that sets forth the
Executive's individual performance goals for such calendar year, which goals
shall reflect and be consistent with the Employer's then-current business plan.
Whether all or any of the individual elements of the Executive's Personal
Achievement Plan are achieved during the year shall guide, but shall not bind,
the CEO in making his recommendation of the amount of the Executive's
Performance Bonus. For purposes of this Agreement, the term "Cash Performance
Bonus" shall mean that component of the Performance Bonus paid or payable in
cash.
(c) BENEFITS. The Executive shall be entitled to participate in all
plans and benefits that may be from time to time accorded to all, and not simply
any one of, the Executive, the Employer's Chief Investment Officer, the
Employer's Chief Operating Officer and the President of the Employer's
affiliate, FI Development Services Corporation (collectively, the "Senior
Headquarters Executives") and shall receive supplemental life and disability
insurance coverages comparable (as a percentage of Base Salary) to those
received by the CEO, all as determined from time to time by the CEO and approved
(if necessary) by the Compensation Committee of the Board. In addition to the
foregoing perquisites, plans and benefits, commencing in fiscal 2000, the
Executive shall receive an annual allowance of two thousand five hundred dollars
($2,500) for personal financial planning and personal income tax preparation,
which allowance shall (i) be paid no later than March 30 of each year and (ii)
increase five percent (5%) per annum (on a compounded basis), commencing as of
the allowance payment due on or before March 30, 2001. If not paid as of the
date of this Agreement, payment of such allowance for fiscal 2000 shall be made
concurrent with the parties' execution of this Agreement.
(d) VACATIONS. The Executive shall be entitled to annual vacations in
accordance with the vacation policy of the Employer, which vacations shall be
taken at a time or times mutually agreeable to the Employer and the Executive;
provided, however, that the Executive shall be entitled to at least four (4)
weeks of paid vacations annually.
2
3
(e) WITHHOLDING. The Employer shall be entitled to withhold, from
amounts payable to the Executive hereunder, any federal, state or local
withholding or other taxes or charges which, from time to time, it is required
to withhold. The Employer shall be entitled to rely upon the advice and counsel
of its independent accountants with regard to any question concerning the amount
or requirement of any such withholding.
3. TERM AND TERMINATION.
(a) TERM. The Executive's employment hereunder shall be for a
continuous and self-renewing two (2) year "evergreen" term (calculated on a day
to day basis), commencing as of the Effective Date, unless sooner terminated at
any time by either party, with or without Cause, such termination to be
effective as of thirty (30) days after written notice to that effect is
delivered to the other party. Notwithstanding the preceding provisions of this
Section 3(a), the term of this Agreement shall, if not previously terminated,
expire of its own accord, and without notice to or from either party, on the
seventieth (70th) birthday of the Executive ("Retirement Date").
(b) PREMATURE TERMINATION WITHOUT NOTICE. Notwithstanding
subparagraph (a) above, the Employer may terminate the Executive's employment on
an immediate basis and without notice, in an emergency circumstance, when
reasonably necessary to preserve or protect the Employer's interests; and in the
case of such an immediate termination, the Employer shall pay the Executive one
(1) month's Base Salary in addition to any other amounts then due to the
Executive as a result of the termination (it being understood that the
applicable termination-based amount then due shall be determined based on the
Section of this Agreement pursuant to which the Executive's employment is
terminated). In the event that the circumstances giving rise to an emergency
termination give rise to payment of a Severance Amount that includes a prorated
Cash Performance Bonus for the then-current year, then such Cash Performance
Bonus shall be prorated as if the Executive had remained employed by the
Employer for an additional period of thirty (30) days beyond the date of actual
immediate emergency termination of his employment as described above.
(c) VOLUNTARY TERMINATION BY EXECUTIVE. In the event that the
Executive voluntarily terminates his employment under this Agreement, other than
pursuant to Section 3(d) (Constructive Discharge) or 3(h) (Change in Control),
then the Employer shall only be required to pay to the Executive such Base
Salary and vacation pay for unused vacation days as shall have accrued and
remain unpaid through the effective date of the termination, and the Employer
shall not be obligated to pay any Performance Bonus for the then-current fiscal
year, or have any further obligations whatsoever to the Executive, other than
payment of any Performance Bonuses previously approved by the Compensation
Committee for any prior fiscal year(s) that remain unpaid, reimbursement of
previously approved expenses, any amounts or rights vested pursuant to the
Scheduled Benefits [as defined in Section 9(b) hereof], and any amounts or
rights vested pursuant to any "employee pension benefit plan" as such term is
defined in Section 3(2)(A) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA").
3
4
(d) CONSTRUCTIVE DISCHARGE. If, at any time during the term of this
Agreement, the Executive is Constructively Discharged (as hereinafter defined),
then the Executive shall have the right, by written notice to the Employer given
within thirty (30) days after such Constructive Discharge, which notice shall
specify the grounds for such Constructive Discharge, to terminate his employment
hereunder, effective as of fifteen (15) days after such notice, and the
Executive shall have no further obligations under this Agreement except as
specified in Sections 4 and 5. The Executive shall in such event receive from
the Employer the Severance Amount and other entitlements described and defined
in subparagraph (g) of this Section 3. Notwithstanding the foregoing, if the
Executive is Constructively Discharged on or within one (1) year after the
occurrence of an event constituting a Change in Control Event [as defined in
subparagraph (h) of this Section 3], then the Executive shall receive the Change
in Control Severance Amount [as defined in subparagraph (h) of this Section 3]
in lieu of the Severance Amount that would otherwise be paid in respect of a
Constructive Discharge under this Section 3(d), and such termination shall also
be deemed a Change in Control Termination for purposes of Section 5 of this
Agreement.
For purposes of this Agreement, the Executive shall be deemed to have
been "Constructively Discharged" upon the occurrence of any one of the following
events:
(i) The Executive shall be removed from the position with the
Employer set forth in Section 1 hereof, by the CEO or the Board, other than as a
result of the Executive's appointment to a position of comparable or superior
authority and responsibility, or other than for Cause, subject, however, to the
following caveats and exclusions, none of which shall constitute a Constructive
Discharge: (A) the Employer shall be permitted to broaden and expand the
Executive's responsibilities, whether in the same or different position; (B) the
Employer may, in connection with Executive's disability as described in Section
3(f), appoint Executive to the position that is both (x) related to the position
set forth in Section 1 hereof and (y) the next highest position then available
with the Employer that the Executive is physically and professionally qualified
to perform at the time of such appointment (the "Substitute Position"); and (C)
the Employer may reduce the Executive's Base Salary to a level that is not less
than the greater of (y) the minimum Base Salary established for fiscal year 1999
as set forth in Section 2(a) hereof and (z) eighty-five percent (85%) of the
Executive's then-current Base Salary, provided that such reduction occurs
generally concurrently with, and as a component of, a comprehensive reduction of
Base Salaries (or reduction in number) of the other Senior Headquarters
Executives then employed by Employer, and provided that, in the context of a
general pay reduction, Executive's Base Salary reduction is reasonably
comparable to that imposed on the other Senior Headquarters Executives; it being
specifically understood and agreed that none of the events described in (A),
(B), and (C) above shall constitute a "Constructive Discharge" hereunder; or
(ii) The Executive shall fail to be vested by the Employer with
the powers, authority and support services customarily attendant to said office
within the REIT industry, other than for Cause and other than due to financial
constraints applicable to the Employer resulting in a generalized reduction of
support services within the Employer; or
4
5
(iii) The Employer shall formally notify the Executive, in
writing, that the employment of the Executive will be terminated (other than for
Cause) or materially modified (other than for Cause) in the future, or that the
Executive will be Constructively Discharged in the future; or
(iv) The Employer shall change the primary employment location
of the Executive to a place that is more than fifty (50) miles from the primary
employment location as of the Effective Date of this Agreement, other than in
connection with a general relocation of the headquarters office (or staff) of
the Employer; or
(v) The Employer shall commit a material breach of its
obligations under this Agreement, which it shall fail to cure or commence to
cure within thirty (30) days after receipt of written notice thereof from the
Executive.
(e) PAYMENTS UPON DEATH. This Agreement shall terminate upon the
death of the Executive. Upon the Executive's death and the resulting termination
of this Agreement, the Employer shall only be obligated to pay such Base Salary
and vacation pay for unused vacation days as shall have accrued and remain
unpaid through the date of death plus seventy-five percent (75%) of his Maximum
Cash Performance Bonus for the then-current year as described in Section 2(b),
such Cash Performance Bonus to be prorated through the date of death on a strict
per diem basis, and the Employer shall not have any further obligations to the
Executive (other than payment of any Performance Bonuses previously approved by
the Compensation Committee for prior fiscal year(s) that remain unpaid,
reimbursement of previously approved expenses, any amounts or rights vested
pursuant to the Scheduled Benefits), and any amounts or rights vested pursuant
to any "employee pension benefit plan" as such term is defined in Section
3(2)(A) of ERISA). The amount that the Employer shall be obligated to pay upon
the Executive's death shall be delivered to such beneficiary, designee or
fiduciary as Executive may have designated in writing or, failing such
designation, to the executor or administrator of his estate, in full settlement
and satisfaction of all claims and demands on behalf of the Executive. Such
payments shall be in addition to such other death benefits of the Employer as
shall have been made available for the benefit of the Executive, and in full
settlement and satisfaction of all payments provided for in this Agreement. The
Employer and the Executive agree that the Employer shall maintain, at all times
during the term of this Agreement, such supplemental life insurance for the
benefit of the Executive as is set forth in Section 2(c) hereof.
(f) PAYMENTS UPON DISABILITY. In the event of the Executive's
"disability" (as defined below), the Employer, acting reasonably and in good
faith, may determine whether or not the basis for, or the cause of, the
Executive's disability is work-related.
(i) If the Employer determines that the basis for, or the cause
of, the Executive's disability is not work-related, the Employer may deliver a
written notice to the Executive advising of the Employer's election to terminate
the Employee's employment, in which case the subject of, and the basis for, the
termination shall be the Executive's disability; and upon delivery of such
termination notice, the Executive's employment shall be terminated.
5
6
Upon the termination of the Executive's employment under this Section 3(e)(i),
the Employer shall only be obligated to pay to the Executive such Base Salary
and vacation pay for unused vacation days as shall have accrued and remain
unpaid through the effective date of termination, and the Employer shall not
have any further obligations to the Executive (other than payment of any
Performance Bonuses previously approved by the Compensation Committee for prior
fiscal year(s) that remain unpaid, reimbursement of previously approved
expenses, any amounts or rights vested pursuant to the Scheduled Benefits, any
amounts or rights vested pursuant to any "employee pension benefit plan" as such
term is defined in Section 3(2)(A) of ERISA).
(ii) If the basis for, or the cause of, the Executive's
disability is "work-related" (as defined below), then the Employer shall, at the
CEO's election, either (A) terminate the Executive's employment and pay him the
Severance Amount [as defined in subparagraph (g) of this Section 3], in
thirty-six (36) equal monthly installments commencing within thirty (30) days
after the Executive's employment is terminated under this Section 3(f); or (B)
appoint and reassign the Executive to a Substitute Position, as defined in
subparagraph (d)(i) of this Section 3, with an adjustment in Base Salary (and
Performance Bonus targets) to levels then attributable to that Substitute
Position, and such appointment and reassignment shall not constitute a
Constructive Discharge under subparagraph (c) of this Section 3. In the event of
an adjustment in Performance Bonus targets due to reassignment based on
disability, the Performance Bonus for the then-expired portion of the
then-current fiscal year as of such reassignment shall be paid to Executive,
when otherwise due following the termination of such fiscal year, based on a per
diem proration of seventy-five percent (75%) of the Maximum Cash Performance
Bonus for Executive's pre-disability position, prorated through the date of
reassignment. If the Executive declines the Substitute Position, then the
Executive shall be deemed to have voluntarily terminated his employment pursuant
to subparagraph (c) of this Section 3, and he shall be entitled to no Severance
Amount or other entitlements other than those enumerated in Section 3(c) hereof.
(iii) For purposes hereof, the Executive's "disability" shall be
deemed to be "work-related" if the disability is either (A) a result of an
accident or incident that would entitle the Executive to workers' compensation
benefits under the Illinois Workers' Compensation Act, as amended, if such
benefits were sought by the Executive; or (B) a result of an injury sustained at
and during an Employer-sponsored function or event, which function or event is
conducted for business, rather than recreational, purposes (e.g. an annual
retreat that the Executive is required to attend, and at which both business
meetings and recreational activities are conducted, with the Executive required
to participate in all such activities, rather than a company picnic to which the
Executive is invited and at which the Executive elects to participate in
Employer-sponsored recreational activities).
(iv) For purposes hereof, "disability" shall mean the
Executive's inability, as a result of physical or mental incapacity,
substantially to perform his duties hereunder for a period of either six (6)
consecutive months, or one hundred twenty (120) business days within a
consecutive twelve (12) month period. In the event of a dispute regarding the
Executive's "disability," or whether the basis for, or the cause of, the
disability
6
7
is "work-related," such dispute shall be resolved through arbitration as
provided in subparagraph (d) of Section 9 hereof, except that the arbitrator
appointed by the American Arbitration Association shall be a duly licensed
medical doctor.
(v) The Executive shall be entitled to the compensation and
benefits provided under this Agreement during any period of incapacitation
occurring during the term of this Agreement prior to the establishment of the
Executive's "disability" and subsequent termination of his employment.
(vi) The Employer and the Executive agree that the Employer
shall maintain, at all times during the term of this Agreement, such
supplemental disability insurance for the benefit of the Executive as is set
forth in Section 2(c) hereof.
(vii) During the period that the monthly payments are made under
subparagraph (ii) above, such payments shall be reduced by the amount of the
monthly disability payments made under the supplemental disability insurance
maintained by the Employer for the benefit of the Executive as is set forth in
Section 2(c) hereof.
(g) PAYMENTS UPON TERMINATION WITHOUT CAUSE OR THROUGH CONSTRUCTIVE
DISCHARGE. In the event of the termination of the employment of the Executive
under this Agreement: (y) by the Employer "Without Cause," meaning for any
reason other than in accordance with the provisions of subparagraph (e) (death),
subparagraph (f) (disability), subparagraph (h) (Change in Control) or
subparagraph (j) (for Cause) of this Section 3; or (z) by the Executive pursuant
to a Constructive Discharge under subparagraph (d) of this Section 3; then
notwithstanding any actual or allegedly available alternative employment or
other mitigation of damages by (or which may be available to) the Executive, the
Employer shall provide Executive with the following entitlements:
(i) The Employer shall pay to the Executive, subject to the
"Age-Based Adjustments" provided and defined in Section 3(i) below, a "Severance
Amount" equal to the sum of:
(A) three (3) times the then-current annual amount of his
Base Salary; plus
(B) seventy-five percent (75%) of his Maximum Cash
Performance Bonus for the then-current year as
described in Section 2(b), such Cash Performance Bonus
to be prorated through the date of termination on a
strict per diem basis.
(ii) The Employer shall also:
(A) notwithstanding the vesting schedule otherwise
applicable, fully vest Executive's options, other than
options that may by their terms vest upon or be
subject to the attainment of
7
8
any individual or company-wide performance criteria
(e.g., and without limitation, Consolidated Incentive
Program options), outstanding under the First
Industrial Realty Trust, Inc. 1994 Stock Incentive
Plan, the First Industrial Realty Trust 1997 Stock
Incentive Plan and any similar plan subsequently
adopted by the Employer (collectively referred to
herein as the "SIP Options"), and awards outstanding
under the First Industrial Realty Trust, Inc. Deferred
Income Plan ("DIP Awards"), effective as of the date
of termination;
(B) notwithstanding the terms of the grant or award
documentation, release and eliminate all unexpired
transfer and encumbrance restrictions otherwise
applicable to any restricted stock owned by the
Executive, effective as of the date of termination;
(C) allow a period of eighteen (18) months following the
termination of employment for the Executive to
exercise any such SIP Options; and
(D) continue for the Executive his health insurance
coverage, whether single or family, so as to provide a
scope of coverage comparable to that which was in
effect as of the date of termination, for a period of
three (3) years following such termination or until
such time as substitute health insurance coverage with
comparable benefits is available to him at a cost
comparable to that borne by him under the Employer's
policy, by virtue of other employment or family
members' insurance benefits secured or made available
after termination.
(iii) The entitlements described in this subparagraph (g) shall
be in addition to the payment of such Base Salary and vacation pay for unused
vacation days as shall have accrued and remain unpaid through the effective date
of termination, and the payment of any Performance Bonuses previously approved
by the Compensation Committee for prior fiscal year(s) that remain unpaid,
reimbursement of previously approved expenses, any amounts or rights vested
pursuant to the Scheduled Benefits, and any amounts or rights vested pursuant to
any "employee pension benefit plan" as such term is defined in Section 3(2)(A)
of ERISA.
(iv) Payment to the Executive of the Severance Amount and those
items enumerated in subparagraph (iii) above will be made in a single lump sum
within thirty (30) days after a termination effectuated by the Employer Without
Cause or by the Executive based on Constructive Discharge.
8
9
(h) CHANGE IN CONTROL.
(i) In the event of a Change in Control (as defined below) of
the Employer resulting in or associated with (as, when and to the extent herein
provided) the termination of the Executive's employment which is undertaken at
the initiative of either (y) the Employer under subparagraph (h)(ii)(A) below,
or (z) the Executive, under subparagraph (h)(ii)(B) below ("Change in Control
Termination"), the following entitlements shall become operative:
(A) The Executive shall be entitled to receive a "Change
in Control Severance Amount" equal to the sum of the
following amounts:
(1) two (2) times the then-current annual amount of
his Base Salary; plus
(2) his Maximum Cash Performance Bonus for the
then-current fiscal year as described in Section
2(b), prorated through the date of termination on
a strict per diem basis; plus
(3) a "Double Historical Average Cash Bonus," which
shall be calculated as follows: first, there will
be a computation of the average of the
percentages of his Maximum Cash Performance Bonus
paid (or that have been declared, but remain
unpaid, as of the date of a Change in Control
Termination) as annual Cash Performance Bonuses
for the two (2) immediately preceding fiscal
years of the Employer ("Historical Average Cash
Bonus Percentage"); second, the Historical
Average Cash Bonus Percentage will then be
multiplied by his Maximum Cash Performance Bonus
Percentage attributable to the year of his Change
in Control Termination, with the resulting
percentage thereby derived being his "Change in
Control Bonus Percentage"; third, the Change in
Control Bonus Percentage shall be multiplied by
his Base Salary as of the date of his Change in
Control Termination, with the resulting product
being his "Historical Average Cash Bonus"; and
fourth, his Historical Average Cash Bonus is
multiplied by two (2), with the resulting product
being his "Double Historical Average Cash Bonus."
See Example #1 on Exhibit C hereto for a
9
10
mathematical example of the preceding
calculation. Notwithstanding the immediately
preceding sentence and Example #1 on Exhibit C,
in the event that (i) the Cash Performance Bonus
paid for either of the two (2) fiscal years
immediately preceding a Change in Control
Termination is less than 100% of the Maximum Cash
Performance Bonus Percentage for such fiscal
year, and (ii) an equity-based Performance Bonus
having a stated aggregate value as of issuance of
$100,000 or more was granted to the Executive in
respect of such years (such year in which (i) and
(ii) occur thereby constituting a "Deficient
Bonus Year"), then for purposes of calculating
the Double Historical Average Cash Bonus
component of the Change in Control Severance
Amount, the minimum Cash Bonus Percentage for any
Deficient Bonus Year (or Years) will be 100%. See
Example #2 on Exhibit C hereto for a mathematical
example of the immediately preceding calculation.
If, as of a Change in Control Event, the
Executive has not received (or had declared by
the Compensation Committee) two Historical Cash
Performance Bonuses with respect to, and while
holding, the position set forth in Section 1,
then the percentage of Maximum Cash Performance
Bonus used to calculate the Historical Cash Bonus
Percentages shall be the percentage of Maximum
Cash Performance Bonus paid to Executive's
predecessor with respect to the particular
position set forth in Section 1 during that
portion of the two (2) preceding fiscal years of
the Employer during which Executive did not hold
the requisite position, subject to a minimum
percentage of 100% for any Deficient Bonus Year
arising on the basis of his predecessor's
compensation history.
(B) The Employer shall also provide the following
entitlements to the Executive:
(1) notwithstanding the vesting schedule otherwise
applicable, the Employer shall fully vest
Executive's options, other than options that may
by their terms vest upon or be subject to the
10
11
attainment of any individual or company-wide
performance criteria (e.g., and without
limitation, Consolidated Incentive Program
options), outstanding under the First Industrial
Realty Trust, Inc. 1994 Stock Incentive Plan, the
First Industrial Realty Trust 1997 Stock
Incentive Plan and any similar plan subsequently
adopted by the Employer (collectively referred to
herein as the "SIP Options"), and awards
outstanding under the First Industrial Realty
Trust, Inc. Deferred Income Plan ("DIP Awards"),
effective as of date of the Change in Control
Termination;
(2) notwithstanding the terms of the grant or award
documentation, the Employer shall release and
eliminate all unexpired transfer and encumbrance
restrictions otherwise applicable to any
restricted stock owned by the Executive,
effective as of date of the Change in Control
Termination;
(3) the Employer shall allow a period of eighteen
(18) months following the termination of
employment for the Executive to exercise any such
SIP Options; and
(4) the Employer shall continue for the Executive his
health insurance coverage, whether single or
family, in effect as of the date of termination
for three (3) years following such termination or
until such time as substitute health insurance
with comparable benefits is available to him at a
cost comparable to that borne by him under the
Employer's policy, by virtue of other employment
or family members' insurance benefits secured or
made available after termination.
(C) The Change in Control Severance Amount shall:
(1) be reduced by any amount paid or otherwise
payable to the Executive pursuant to Sections
3(d) (Constructive Discharge), 3(e) (disability)
or 3(g) (termination by Employer without Cause);
and
(2) be in addition to: such current Base Salary and
vacation pay for unused vacation days as shall
have accrued and remain unpaid as of the
effective
11
12
date of termination; the payment of amounts any
Performance Bonuses previously approved by the
Compensation Committee for prior fiscal year(s)
that remain unpaid; reimbursement of previously
approved or otherwise authorized expenses; any
amounts or rights theretofore vested pursuant to
the Scheduled Benefits; and any amounts or rights
vested pursuant to any "employee pension benefit
plan" as such term is defined in Section 3(2)(A)
of ERISA.
(D) The Change in Control Severance Amount will be paid in
a single lump sum, on (I) the date of the Change in
Control Event, if the Executive's employment is in
fact terminated concurrent with the Change in Control
Event [or was terminated by the Employer prior to the
Change in Control Event so as to give rise to a Change
in Control Severance Amount entitlement as of the
Change in Control Event, pursuant to subparagraph
(ii)(A) below]; or (II) within thirty (30) days after
the Executive terminates his employment following a
Change in Control Event under subparagraph (ii)(B)
below.
(ii) The following (and only the following) events shall
constitute a Change in Control Termination under this subparagraph (h):
(A) Executive's employment is terminated by the Employer
(or its successor) for any reason other than for Cause
or due to death or disability, within either of the
respective three hundred sixty-five (365) day periods
either preceding or following the event constituting a
Change in Control; or
(B) The Executive terminates his employment under this
Agreement upon and through written notice given to the
Employer within thirty (30) days after the occurrence
of a "Triggering Circumstance," as defined and
described below, such right of termination to exist
only if (x) the Triggering Circumstance described in
(i) or (ii) below occurs within a period of three
hundred sixty-five (365) days following a Change in
Control Event; or (y) either of the Triggering
Circumstances described in (iii) or (iv) below occurs
within a period of seven hundred thirty (730) days
[subject to extension for (iii) as set forth below]
following a Change in Control Event. The
12
13
following shall constitute "Triggering Circumstances"
hereunder, entitling the Executive to terminate his
employment following a Change in Control Event and
receive a Change in Control Severance Amount: (i) the
Change in Control Event gives rise to a change in
employment circumstances that would otherwise
constitute a Constructive Discharge; (ii) the Change
in Control Event results in a relocation of the
Executive's primary place of employment to a location
that is more than fifty (50) miles from his primary
employment location with Employer as of the Effective
Date of this Agreement, even if such relocation is
pursuant to a general merger-induced or other general
headquarters office relocation and would, in the
absence of a Change in Control Event, not constitute a
Constructive Discharge hereunder; (iii) the Company
(or its successor), following the Change in Control
Event, pays Cash Performance Bonuses to the Executive,
attributable to either of those two (2) certain fiscal
years respectively constituting (w) the fiscal year in
which the Change in Control Event occurs and (x) the
next succeeding fiscal year ("Post-CIC Fiscal Years"),
at a level that is less than the greater of (y) the
amount equal to the average of the percentages of Base
Salary paid as Cash Performance Bonuses for the two
(2) fiscal years preceding the Change in Control Event
and (z) the amount equal to one hundred percent (100%)
of the respective Base Salaries then in place for each
of the Post-CIC Fiscal Years [it being understood that
the seven hundred thirty (730) day period for
determining whether there is a deficiency in a Cash
Performance Bonus for the second of the two (2)
Post-CIC Fiscal Years shall be extended as necessary
to encompass the date on which the Cash Performance
Bonus for the second Post-CIC Fiscal Year is actually
paid]; or (iv) the annual Base Salary payable to the
Executive for either Post-CIC Fiscal Year is less than
the Base Salary in effect as of the occurrence of the
Change in Control Event. In addition to the foregoing
Triggering Circumstance events described in (i)
through (iv) above giving rise to the Executive's
right to effectuate a Change in Control Termination,
it shall also constitute a Triggering Circumstance,
and the Executive shall also be entitled to effectuate
such Change in Control Termination if, as of the
effective date of a Change in Control Event, the
successor employer/acquiring entity does not affirm,
in writing, its assumption of the
13
14
obligations of the Employer under this Agreement, and
its agreement to perform such obligations for the
benefit of the Executive following the Change in
Control Event. Any Change in Control Termination by
the Executive shall be effectuated by written notice
provided to the Employer or its successor within
thirty (30) days following the Executive's actual
knowledge of the first occurrence of a Triggering
Circumstance which, in the case of (iii) or (iv)
above, shall constitute the Executive's receipt of the
initial non-conforming Base Salary payment or Cash
Performance Bonus payment in question. The failure of
the Executive to give a timely notice of termination
as hereinabove provided following the occurrence of a
Triggering Circumstance shall constitute a waiver of
the Executive's right to initiate a Change in Control
Termination by reason of such Triggering Circumstance.
Executive shall have no right to initiate a Change in
Control Termination giving rise to an entitlement to a
Change in Control Severance Amount unless a Triggering
Circumstance shall have occurred and shall have been
acted upon by Executive on a timely basis as
hereinabove provided.
(iii) For purposes of this Agreement, the term "Change in Control
Event" shall mean the following events:
(A) The consummation of the acquisition by any person [as
such term is defined in Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "1934
Act")] of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the 1934 Act) of forty
percent (40%) or more of the combined voting power
embodied in the then-outstanding voting securities of
the Employer; or
(B) The persons who, as of the date hereof, constitute the
Employer's Board of Directors (the "Incumbent
Directors") cease, in opposition to the Nominating
Committee of the Board and as a result of a tender
offer, proxy contest, merger or similar transaction or
event (as opposed to turnover caused by death or
resignation), to constitute at least a majority of the
Board, provided that any person becoming a director of
the Employer subsequent to the date hereof whose
election or nomination for election was approved by a
vote of at least
14
15
a majority of the Incumbent Directors, or by a
Nominating Committee duly appointed by such Incumbent
Directors, or by successors of either who shall have
become Directors other than as a result of a hostile
attempt to change Directors, whether through a tender
offer, proxy contest or similar transaction or event
shall be considered an Incumbent Director; or
(C) The consummation of:
(1) a merger or consolidation of the Employer, if the
stockholders of the Employer as constituted in
the aggregate immediately before such merger or
consolidation do not, as a result of and
following such merger or consolidation, own,
directly or indirectly, more than seventy-five
percent (75%) of the combined voting power of the
then outstanding voting securities of the entity
resulting from such merger or consolidation in
substantially the same proportion as was
represented by their ownership of the combined
voting power of the voting securities of the
Employer outstanding immediately before such
merger or consolidation; or
(2) a liquidation, sale or other ultimate disposition
or transfer of all or substantially all of the
total assets of the Employer and its
subsidiaries, which shall be deemed to have
occurred for purposes of ascertaining when a
Change in Control Event has taken place when, as
and if the Employer shall have disposed, in a
single transaction or set of related
transactions, of more than fifty percent (50%) of
its and its subsidiaries' total real estate
portfolio, pursuant to a declared plan of
liquidation, such percentage of the portfolio to
be deemed to have been transferred at such time
as the Employer and its Subsidiaries shall have
disposed of fifty percent (50%) or more of their
properties in relation to overall undepreciated
(i.e. cost-based) book value, net operating
income or square footage of developed properties.
(iv) Notwithstanding the immediately preceding subparagraph
(iii), a Change in Control Event shall not be deemed to occur solely because
forty percent (40%) or
15
16
more of the combined voting power of the then-outstanding securities of the
Employer is acquired by:
(A) a trustee or other fiduciary holding securities under
one or more employee benefit plans maintained for
employees of the entity; or
(B) any corporation or other entity which, immediately
prior to such acquisition, is substantially owned
directly or indirectly by the Employer or by its
stockholders in the same proportion as their ownership
of stock in the Employer immediately prior to such
acquisition.
(v) If it is determined, in the opinion of the Employer's
independent accountants, in consultation, if necessary, with the Employer's
independent legal counsel, that any Change in Control Severance Amount, either
separately or in conjunction with any other payments, benefits and entitlements
received by the Executive in respect of a Change in Control Termination
hereunder or under any other plan or agreement under which the Executive
participates or to which he is a party, would constitute an "Excess Parachute
Payment" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), and thereby be subject to the excise tax imposed
by Section 4999 of the Code (the "Excise Tax"), then in such event the Employer
shall pay to the Executive a "grossing-up" amount equal to the amount of such
Excise Tax, plus all federal and state income or other taxes with respect to the
payment of the amount of such Excise Tax, including all such taxes with respect
to any such grossing-up amount. If, at a later date, the Internal Revenue
Service assesses a deficiency against the Executive for the Excise Tax which is
greater than that which was determined at the time such amounts were paid, then
the Employer shall pay to the Executive the amount of such unreimbursed Excise
Tax plus any interest, penalties and reasonable professional fees or expenses
incurred by the Executive as a result of such assessment, including all such
taxes with respect to any such additional amount. The highest marginal tax rate
applicable to individuals at the time of the payment of such amounts will be
used for purposes of determining the federal and state income and other taxes
with respect thereto. Employer shall withhold from any amounts paid under this
Agreement the amount of any Excise Tax or other federal, state or local taxes
then required to be withheld. Computations of the amount of any grossing-up
supplemental compensation paid under this subparagraph shall be conclusively
made by the Employer's independent accountants, in consultation, if necessary,
with the Employer's independent legal counsel. If, after the Executive receives
any gross-up payments or other amount pursuant to this subparagraph (v), the
Executive receives any refund with respect to the Excise Tax, the Executive
shall promptly pay the Employer the amount of such refund within ten (10) days
of receipt by the Executive.
(i) AGE-BASED ADJUSTMENTS. It is recognized and acknowledged that
Executive intends and wishes to retire by the Retirement Date, on which date he
shall have attained the age of seventy (70), which shall be the mandatory
retirement age for senior management of the Employer. This Agreement shall
accordingly terminate, on an automatic
16
17
basis, as provided in Section 3(a) above, as of said Retirement Date. In
addition, it is mutually acknowledged and agreed that the Severance Amount owed
to the Executive in the event of a termination of this Agreement pursuant to
Section 3(d) or 3(g) hereof (respectively dealing with Constructive Discharge
and termination by Employer without Cause) shall be gradually reduced during the
three (3) year pre-retirement transition period preceding the Retirement Date,
by being made subject to "Age-Based Adjustments," based on the following
schedule:
Age of Executive as of % of Severance Amount Due
Date of Termination Per Age-Based Adjustment
---------------------- -------------------------
67 75%
68 50%
69 25%
70 0%
(j) TERMINATION FOR CAUSE. The employment of the Executive under this
Agreement may be terminated by the Employer on the basis of "Cause," as
hereinafter defined. If the Executive's employment is terminated by the Employer
for Cause under this subparagraph (j), then the Employer shall only be obligated
to pay to the Executive such Base Salary and vacation pay for unused vacation
days as shall have accrued and remain unpaid through the effective date of
termination, but the Employer shall not be required to pay to the Executive any
Performance Bonus for the then-current fiscal year, or have any further
obligations whatsoever to the Executive, other than any Performance Bonuses
previously approved by the Compensation Committee for prior fiscal year(s) that
remain unpaid; reimbursement for previously approved expenses; and continuation
of any amounts or rights vested pursuant to the Scheduled Benefits that remain
vested upon and notwithstanding the Executive's termination for Cause, in which
event such rights to payment or continuation shall be determined pursuant to the
terms of the plans under which such Scheduled Benefits are provided, and not the
terms of this subparagraph (j) of Section 3. Termination for "Cause" shall mean
the termination of the Executive's employment on the basis or as a result of:
(i) the Executive being found guilty of a felony; (ii) the Executive's
commission of an act that disqualifies the Executive (whether under the
Employer's by-laws, or under any statute, regulation, law or rule applicable to
the Employer) from serving as an officer or director of the Employer; or (iii) a
recurring pattern of material and willful dereliction of duty of the Executive's
material responsibilities, where such recurring failure has a material adverse
effect upon the business of the Employer, as reasonably determined by the CEO,
in the CEO's good faith determination. In making such determination, it is
understood that the CEO shall interpret and apply the above-described standards
(of materiality, or willful dereliction, and of adversity) in a manner that is
normal and customary within the Employer's industry. Executive shall be entitled
to thirty (30) days' prior written notice (the "Termination Notice") of the
Employer's intention to terminate his employment for Cause, and such Termination
Notice shall: specify the grounds for such termination; afford the Executive a
reasonable opportunity to cure any conduct or act (if curable) alleged as
grounds for such termination; and a reasonable opportunity to present to the CEO
his position regarding any dispute relating to the existence of such Cause.
Notwithstanding the foregoing procedure, the Employer (through
17
18
the CEO) shall have the unilateral right to make the final substantive
determination as to whether the Executive (through the CEO) has properly
remedied or otherwise addressed those matters described in the Termination
Notice as grounds for termination of the Executive's employment; and in the
event that the Employer determines (as of the expiration of the
above-contemplated 30-day period), that the Executive has not appropriately
remedied or otherwise addressed those matters, then the Executive's term of
employment shall, in all events, automatically terminate as of the thirtieth
(30th) day after the Employer delivers the Termination Notice, without any
responsibility or obligation of the Employer to provide the Executive with any
further notice or explanation of the grounds for his termination. If the
Executive challenges his termination for Cause under the provisions of Section
9(d) hereof and the arbitrator finds that the Executive did not engage in
conduct which properly entitled the Employer to terminate the Executive's
employment for Cause under the criteria set forth above, then the Employer shall
pay to the Executive, within thirty (30) days of the arbitrator's decision: the
Severance Amount as if his termination of employment had been effectuated
pursuant to Section 3(g) hereunder; with interest on the Severance Amount at the
rate of eighteen percent (18%) from the date of the Termination Notice to the
date payment is ordered made of such Severance Amount to be paid thereon; plus
the amount of the Executive's reasonable attorneys' fees incurred in such
arbitration.
(k) RESIGNATION FROM RELATED POSITIONS. Upon the termination of the
Executive's employment with the Employer, for any reason whatsoever, the
Executive shall immediately resign from any and all officerships, directorships,
committee memberships and all other elected or appointed positions, of any
nature, that the Executive then holds with any or all of the Employer and its
affiliates.
(l) STOCK REDEMPTION. Upon the termination of the Executive's
employment with the Employer, for any reason whatsoever, the Executive shall
permit the Employer or its affiliate(s), as the case may be, to immediately
redeem any and all common or preferred stock (or any partnership or membership
interests, as the case may be) that the Executive then owns in any affiliate(s)
of Employer, which redemption shall occur at the same cash price (if any) as
Executive actually initially paid to acquire such stock (or partnership or
membership interests, as the case may be). In no event, however, shall the
foregoing requirement apply to any stock (common or preferred) that Executive
owns in Employer, or to any limited partnership interests (so-called "OP Units")
that the Executive owns in First Industrial, L.P., a Delaware limited
partnership in which the Employer is the general partner and which is commonly
referred to as the "Operating Partnership."
4. CONFIDENTIALITY AND LOYALTY. The Executive acknowledges that, during
the course of his employment prior to his entry into this Agreement, he has
produced, received and had access to, and may hereafter continue to produce,
receive and otherwise have access to, various materials, records, data, trade
secrets and information not generally available to the public, specifically
including any information concerning projects in the "Pipeline" as defined in
Section 5(a)(ii) below (collectively, "Confidential Information") regarding the
Employer and its subsidiaries and affiliates. Accordingly, during the term of
this Agreement and for the one (1) year period immediately subsequent to any
termination of this Agreement, on any
18
19
basis, the Executive shall hold in confidence and shall not directly or
indirectly for his own benefit or for the benefit of any other person or entity,
for economic gain or otherwise, disclose, use, copy or make lists of any such
Confidential Information, except to the extent that (a) such information is or
thereafter becomes lawfully available from public sources; or (b) such
disclosure is authorized in writing by the Employer; or (c) such disclosure is
determined by court order or official governmental ruling to be required by law
or by any competent administrative agency or judicial authority; or (d) such
disclosure is otherwise reasonably necessary or appropriate in connection with
the performance by the Executive of his duties hereunder. All records, files,
documents, computer diskettes, computer programs and other computer-generated
material, as well as all other materials or copies thereof relating to the
Employer's business, which the Executive shall prepare or use, shall be and
remain the sole property of the Employer, shall not be removed from the
Employer's premises without its written consent, and shall be promptly returned
to the Employer upon termination of the Executive's employment hereunder.
5. NON-COMPETITION COVENANT.
(a) RESTRICTIVE COVENANT.
(i) The Employer and the Executive have jointly reviewed the
tenant lists, property submittals, logs, broker lists, and operations of the
Employer, and have agreed that as an essential ingredient of and in
consideration of this Agreement and the Employer's agreement to make the payment
of the amounts described in Sections 2 and 3 hereof when and as herein
described, the Executive hereby agrees, except with the express prior written
consent of the Employer, and subject to the limitations set forth in Section
5(c) below, that for a period of one (1) year [or in the case of a Change in
Control Termination, six (6) months] after the termination of the Executive's
employment with the Employer (the "Restrictive Period"), he will not directly or
indirectly in any manner compete with the business of the Employer, including,
but not by way of limitation, by directly or indirectly owning, managing,
operating, controlling, financing, or by directly or indirectly serving as an
employee, officer or director of or consultant to, or by soliciting or inducing,
or attempting to solicit or induce, any employee or agent of Employer to
terminate employment with Employer and become employed by the following:
(A) any company listed as an industrial or mixed
office/industrial (but not pure office) REIT or Real
Estate Operating Company in the Realty Stock Review, a
Dow Jones & Co. Publication, (a "Peer Group Member") a
copy of such listing for the month prior of the
Effective Date hereof being attached hereto as Exhibit
D, or
(B) any person, firm, partnership, corporation, trust or
other entity (including, but not limited to, Peer
Group Members) which, as a material component of its
business (other than for its own use as an owner or
user), invests in
19
20
industrial warehouse facilities and properties similar
to the Employer's investments and holdings: (1) in any
geographic market or territory in which the Employer
owns properties or has an office either as of the date
hereof or as of the date of termination of the
Executive's employment; or (2) in any market in which
an acquisition or other investment by the Employer or
any affiliate of the Employer is pending as of the
date of termination, as conclusively evidenced by the
existence of a Request for Proposal or an executed
Agreement of Purchase and Sale, Contribution (or
Merger) Agreement or Letter of Intent, Confidentiality
Agreement, Due Diligence Agreement, Pursuit Cost
Agreement, Partnership or Joint Venture Agreement, or
by a Post Acceptance Conference Call (PACC) memorandum
or Investment Committee (IC) approval in existence at
the time of the termination of the Executive's
employment.
(ii) In addition, during the Restrictive Period, the Executive
shall not act as a principal, investor or broker/intermediary, or serve as an
employee, officer, advisor or consultant, to any person or entity, in connection
with or concerning any investment opportunity of the Employer that is in the
"Pipeline" (as defined below) as of the effective date of the termination of the
Executive's employment. Within ten (10) business days after the Executive's
termination of employment, the CEO shall deliver to the Executive a written
statement of the investment opportunities in the Pipeline as of the effective
date of the termination of the Executive's employment (the "Pipeline
Statement"), and the Executive shall then review the Pipeline Statement for
accuracy and completeness, to the best of his knowledge, and advise the CEO of
any corrections required to the Pipeline Statement. The Executive's receipt of
any Severance Amount under Sections 3(c), (f) and (g) shall be conditioned on
his either acknowledging, in writing, the accuracy and completeness of the
Pipeline Statement, or advising the CEO, in writing, of any corrections or
revisions required to the Pipeline Statement in order to make it accurate and
complete, to the best of the Executive's knowledge. The restrictions concerning
any one individual investment opportunity in the Pipeline shall continue until
the first to occur of (i) expiration of the Restrictive Period; or (ii) the
Executive's receipt from the Employer of written notice that the Employer has
abandoned such investment opportunity, such notice not to affect the
restrictions on all other investment opportunities contained in the Pipeline
Statement during the remainder of the Restrictive Period. An investment
opportunity shall be considered in the "Pipeline" if, as of the effective date
of the termination of the Executive's employment, the investment opportunity is
pending (for example, is the subject of a letter of intent) or proposed (for
example, has been presented to, or been bid on by, the Employer in writing or
otherwise) or under consideration by the Employer, whether at the PACC, IC,
staff level(s) or otherwise, and relates to any of the following potential forms
of transaction: (A) an acquisition for cash; (B) an UPREIT transaction; (C) a
transaction under the "First Exchange" program; (D) a development project or
venture; (E) a joint venture partnership or other cooperative
20
21
relationship, whether through a DOWNREIT relationship or otherwise; (F) an
"Opportunity Fund" or other private investment in or co-investment with the
Employer; (G) any debt placement opportunity by or in Employer; (H) any service
or other fee-generating opportunity by the Employer; or (I) any other investment
by the Employer or an affiliate of the Employer, in or with any party or by any
party in the Employer or an affiliate of the Employer.
(iii) The Restrictions contained in subparagraphs (i) and (ii)
above are collectively referred to as the "Restrictive Covenant." If the
Executive violates the Restrictive Covenant and the Employer brings legal action
for injunctive or other relief, the Employer shall not, as a result of the time
involved in obtaining such relief, be deprived of the benefit of the full period
of the Restrictive Covenant. Accordingly, the Restrictive Covenant shall be
deemed to have the duration specified in this subparagraph (i) computed from the
date the relief is granted, but reduced by the time between the period when the
Restrictive Period began to run and the date of the first violation of the
Restrictive Covenant by the Executive. In the event that a successor of the
Employer assumes and agrees to perform this Agreement or otherwise acquires the
Employer, this Restrictive Covenant shall continue to apply only to the primary
markets of the Employer as they existed immediately before such assumption or
acquisition, and shall not apply to any of the successor's other offices or
markets. The foregoing Restrictive Covenant shall not prohibit the Executive
from owning, directly or indirectly, capital stock or similar securities that
are listed on a securities exchange or quoted on the National Association of
Securities Dealers Automated Quotation System and that do not represent more
than five percent (5%) of the outstanding capital stock of any corporation.
(b) RELIEF FROM RESTRICTIVE COVENANTS. In the event the Executive
shall desire to engage in any activity that would violate the Restrictive
Covenant which he reasonably and in good faith believes would be immaterial to
the economic and proprietary interests of the Employer or any of its affiliates,
he may, prior to (but not after) engaging in such activity, submit to the CEO a
written request for relief from the Restrictive Covenant, which written request
shall set forth the scope of the proposed activity, the scope of the requested
relief and the basis upon which Executive believes such activity to be
immaterial to the interests of the Employer. Within ten (10) business days after
receipt of the Executive's written request, and subject to the specific approval
of the Board, the CEO shall advise the Executive, in writing, as to whether the
requested relief shall be granted. The parties agree that such relief shall be
granted only if the CEO reasonably determines that the reasonably anticipated
impact on the Employer of the grant of such relief is in fact immaterial to and
fully compatible with the economic and proprietary interests of the Employer
(and its separate regions, ventures, divisions, subsidiaries and affiliates), it
being specifically hereby understood and acknowledged by the Executive that a
purportedly "minor" percentage impact on company-wide revenues or expenses of
the Employer shall not be deemed to be per se immaterial.
(c) TERMINATION OF RESTRICTIVE COVENANT - CERTAIN CHANGE IN CONTROL
TERMINATION BY EXECUTIVE. If the Executive terminates his employment with the
successor of the Employer following a Change in Control Event in the absence of
a Triggering Circumstance, so as to effectuate a termination of his employment
without any entitlement of
21
22
or claim by the Executive to a Change in Control Severance Amount, then the
Restrictive Covenant set forth in this Section 5 shall not be operative with
respect to the Executive following such termination, during the Restrictive
Period or otherwise, but the obligations of the Executive set forth in Section 4
as to Confidential Information shall remain operative as therein provided.
(d) REMEDIES FOR BREACH OF RESTRICTIVE COVENANT. The Executive
acknowledges that the restrictions contained in Sections 4 and 5 of this
Agreement are reasonable and necessary for the protection of the legitimate
proprietary business interests of the Employer; that any violation of these
restrictions would cause substantial injury to the Employer and such interests;
that the Employer would not have entered into this Agreement with the Executive
without receiving the additional consideration offered by the Executive in
binding himself to these restrictions; and that such restrictions were a
material inducement to the Employer to enter into this Agreement. In the event
of any violation of these restrictions or statement of intent by the Executive
to violate any of these restrictions, the Employer shall automatically be
relieved of any and all further financial and other obligations to the Executive
under this Agreement, in relation to Severance Payments or otherwise, and shall
be entitled to all rights, remedies or damages available at law, in equity or
otherwise under this Agreement; and, without limitation, shall be entitled to
temporary and preliminary injunctive relief, granted by a court of competent
jurisdiction, to prevent or restrain any such violation by the Executive and any
and all persons directly or indirectly acting for or with him, as the case may
be, such injunctive relief to be available pending the outcome of the
arbitration process provided under Section 9(d) of this Agreement, which
arbitration process will entitle the arbitrator to determine that permanent
injunctive relief is to be granted to the Employer, whereupon such relief shall
be granted by a court of competent jurisdiction, based on the determination of
the arbitrator.
6. INTERCORPORATE TRANSFERS. If the Executive shall be transferred by the
Employer to an affiliate of the Employer, such transfer, by itself and without
any adverse financial or functional impact on the Executive, shall not be deemed
a Constructive Discharge or otherwise be deemed to terminate or modify this
Agreement, and the employing corporation or other entity to which the Executive
is transferred shall, for all purposes of this Agreement, be construed as
standing in the same place and stead as the Employer as of the effective date of
such transfer provided, however, that at all times after such transfer, First
Industrial Realty Trust, Inc. shall remain liable for all obligations of the
Employer hereunder, including the payment of all Base Salary, Performance
Bonuses or other amounts set forth herein. For purposes hereof, an affiliate of
the Employer shall mean any corporation or other entity directly or indirectly
controlling, controlled by, or under common control with, the Employer.
7. INTEREST IN ASSETS AND PAYMENTS. Neither the Executive nor his estate
shall acquire any rights in any funds or other assets of the Employer, otherwise
than by and through the actual payment of amounts payable hereunder; nor shall
the Executive or his estate have any power to transfer, assign, anticipate,
pledge, hypothecate or otherwise encumber any of said payments; nor shall any of
such payments be subject to seizure for the payment of any debt, judgment,
alimony, separate maintenance or be transferable by operation of law in the
22
23
event or as a result of any bankruptcy, insolvency or other legal proceeding
otherwise relating to the Executive.
8. INDEMNIFICATION.
(a) During the term of this Agreement and thereafter throughout all
applicable limitations periods, the Employer shall provide the Executive
(including his heirs, personal representatives, executors and administrators),
with such coverage as shall be generally available to senior officers of the
Employer under the Employer's then-current directors' and officers' liability
insurance policy, at the Employer's expense.
(b) In addition to the insurance coverage provided for in paragraph
(a) of this Section 8, the Employer shall defend, hold harmless and indemnify
the Executive (and his heirs, executors and administrators) to the fullest
extent permitted under applicable law, and subject to each of the requirements,
limitations and specifications set forth in the Articles of Incorporation,
Bylaws and other organizational documents of the Employer, against all expenses
and liabilities reasonably incurred by him in connection with or arising out of,
any action, suit or proceeding in which the Executive may be involved by reason
of his having been an officer of the Employer (whether or not he continues to be
an officer at the time of such expenses or liabilities are incurred), such
expenses and liabilities to include, but not be limited to, judgments, court
costs and attorneys' fees and the cost of reasonable settlements.
(c) In the event the Executive becomes a party, or is threatened to
be made a party, to any action, suit or proceeding for which the Employer has
agreed to provide insurance coverage or indemnification under this Section 8,
the Employer shall, to the full extent permitted under applicable law, and
subject to the each of the requirements, limitations and specifications set
forth in the Articles of Incorporation, Bylaws and other organizational
documents of the Employer, advance all expenses (including the reasonable
attorneys' fees of the attorneys selected by Employer and approved by Executive
for the representation of the Executive), judgments, fines and amounts paid in
settlement (collectively "Expenses") incurred by the Executive in connection
with the investigation, defense, settlement, or appeal of any threatened,
pending or completed action, suit or proceeding, subject to receipt by the
Employer of a written undertaking from the Executive covenanting: (i) to
reimburse the Employer for the amount of all of the Expenses actually paid by
the Employer to or on behalf of the Executive in the event it shall be
ultimately determined, by the court or the arbitrator, as applicable to the
case, that the Executive is not entitled to indemnification by the Employer for
such Expenses; and (ii) to assign to the Employer all rights of the Executive to
insurance proceeds, under any policy of directors' and officers' liability
insurance or otherwise, to the extent of the amount of the Expenses actually
paid by the Employer to or on behalf of the Executive.
9. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Executive, the Employer, the Executive's personal
representatives, the Employer's successors and assigns, and any successor or
assign of the Employer shall be
23
24
deemed the "Employer" hereunder. The Executive may neither assign his duties or
obligations this Agreement, nor sell, assign, pledge, encumber, transfer or
hypothecate his entitlement hereunder, and the Employer shall have no obligation
to recognize any such purported alienation, or pay any funds to any party
claiming the benefit thereof.
(b) ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the
entire agreement between the parties respecting the subject matter hereof, and
supersedes all prior negotiations, undertakings, agreements and arrangements
with respect thereto, whether written or oral; provided, however, that all
benefits and rights conferred by those equity-based and other compensation plans
as provided by the plans included on Exhibit B hereto (collectively, the
"Scheduled Benefits") shall be governed by those equity-based and other
compensation plans and ancillary documents, whether adopted or signed prior to
or after the Effective Date of this Agreement and as such are modified by this
Agreement. Except as otherwise explicitly provided herein, this Agreement may
not be amended or modified except by written agreement signed by the Executive
and the Employer.
(c) ENFORCEMENT AND GOVERNING LAW. The provisions of this Agreement
shall be regarded as divisible and separate; if any of said provisions should be
declared invalid or unenforceable by a court of competent jurisdiction, the
validity and enforceability of the remaining provisions shall not be affected
thereby. This Agreement shall be construed and the legal relations of the
parties hereto shall be determined in accordance with the laws of the State of
Illinois, as such state constitutes the situs of the headquarters office of the
Employer and the place of employment hereunder, and such laws shall apply
without reference to the rules of law regarding conflicts of law.
(d) ARBITRATION. Except only as otherwise provided in subparagraph
(d) of Section 5, each and every dispute, controversy and contested factual and
legal determination arising under or in connection with this Agreement or the
Executive's employment by the Employer shall be committed to and be resolved
exclusively through the arbitration process, in an arbitration proceeding,
conducted by a single arbitrator sitting in Chicago, Illinois, in accordance
with the rules of the American Arbitration Association (the "AAA") then in
effect. The arbitrator shall be selected by the parties from a list of eleven
(11) arbitrators provided by the AAA, provided that no arbitrator shall be
related to or affiliated with either of the parties. No later than ten (10) days
after the list of proposed arbitrators is received by the parties, the parties,
or their respective representatives, shall meet at a mutually convenient
location in Chicago, Illinois, or telephonically. At that meeting, the party who
sought arbitration shall eliminate one (1) proposed arbitrator and then the
other party shall eliminate one (1) proposed arbitrator. The parties shall
continue to alternatively eliminate names from the list of proposed arbitrators
in this manner until each party has eliminated five (5) proposed arbitrators.
The remaining arbitrator shall arbitrate the dispute. Each party shall submit,
in writing, the specific requested action or decision it wishes to take, or
make, with respect to the matter in dispute ("Proposed Solution"), and the
arbitrator shall be obligated to choose one (1) party's specific Proposed
Solution, without being permitted to effectuate any compromise or "new"
position; provided, however, that the arbitrator shall be authorized to award
amounts not in dispute during the pendency of any dispute or controversy arising
under or in connection with
24
25
this Agreement. The party whose Proposed Solution is not selected shall bear the
costs of all counsel, experts or other representatives that are retained by both
parties, together with all costs of the arbitration proceeding, including,
without limitation, the fees, costs and expenses imposed or incurred by the
arbitrator. If the arbitrator ultimately chooses the Executive's Proposed
Solution, then the Employer shall pay interest at the rate of eighteen percent
(18%) interest, per annum, on the amount the arbitrator awards to the Executive
(exclusive of attorneys' fees and costs and expenses of the arbitration), such
interest to be calculated from the date the amount payable under the Executive's
Proposed Solution would have been paid under this Agreement, but for the
dispute, through the date payment is ordered made. Judgment may be entered on
the arbitrator's award in any court having jurisdiction, including, if
applicable, entry of a permanent injunction under such subparagraph (d) of
Section 5.
(e) PRESS RELEASES AND PUBLIC DISCLOSURE. Any press release or other
public communication by either the Executive or the Employer with any other
person concerning the terms, conditions or circumstances of Executive's
employment, or the termination of such employment, shall be subject to prior
written approval of both the Executive and the Employer, subject to the proviso
that the Employer shall be entitled to make requisite and appropriate public
disclosure of the terms of this Agreement and any termination hereof, without
the Executive's consent or approval, as may be required under applicable
statutes, and the rules and regulations of the Securities and Exchange
Commission and New York Stock Exchange. Employer shall be entitled to rely on
the advice and counsel of its legal counsel and other professional advisors in
determining whether any such disclosure is required.
(f) PUT DEMAND AS TO RELEASED SECURITIES. If, pursuant to either of
Sections 3(g) or 3(h) hereof, the Employer shall have prematurely released and
eliminated all unexpired transfer and encumbrance restrictions otherwise
applicable to any restricted shares of common stock of the Employer owned by the
Executive, then the Executive shall, on a one-time basis exerciseable within
(30) days of the date of such release of restrictions, have the right to put to
the Employer, and require that the Employer purchase, such shares of restricted
stock as shall have been released as above described ("Released Securities").
Such put shall be exercised by delivery of a "Put Demand" to the Employer, given
in writing pursuant to the notice provisions hereof, which Put Demand: (i) shall
encompass all of the Released Securities owned by the Executive; and (ii) shall
in no event be applicable to or available in respect of any "Exempt Shares,"
which shall constitute those Released Securities that may otherwise be sold by
the Executive, without registration, pursuant to either or both of Rules 144 and
145 of the Securities Act of 1933, as amended, within a period of one hundred
twenty (120) days following the date of the release of the Executive's
restricted shares. Upon its receipt of a timely and otherwise proper Put Demand
from the Executive, the Employer shall thereby and thereupon become obligated,
within a period of ten (10) days following the date of delivery of the Put
Demand, to purchase, for cash, the Released Securities that were the subject of
the Put Demand in question (in all events exclusive of Exempt Shares), at a
price per share equal to the weighted average (by daily trading volume on the
New York Stock Exchange) of the closing price of the Employer's shares of common
stock for the thirty (30) trading days immediately preceding the date of
delivery of the Put Demand. The specific date on which such purchase shall be
consummated and closed shall be established pursuant to the
25
26
mutual agreement of the parties and, in the absence of such agreement, on the
tenth (10th) day following the date of delivery of the Put Demand (and if such
day falls on a weekend or business holiday, then on the first business day
thereafter). By his delivery of a Put Demand, the Executive shall become
irrevocably obligated to sell, at the price above specified, all of the Released
Securities that were the subject of the Put Demand. The transfer of the Released
Securities to the Employer shall be effectuated pursuant to commercially
reasonable and customary stock transfer and other related documentation prepared
at Employer's expense by counsel to the Employer.
(g) INTEREST. If any amount due hereunder is not paid within ten (10)
days of being due, then the Employer or the Executive, as applicable, shall pay
interest at the rate of 200 basis points above the base commercial lending rate
published in The Wall Street Journal in effect from time to time during the
period of such non-payment; provided, however, that if the interest rate set
forth above exceeds the highest legally-permissible interest rate, then the
interest rate shall be reduced to the level of the highest legally permissible
interest rate.
(h) WAIVER. No waiver by either party at any time of any breach by
the other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party, shall be deemed a waiver of any
similar or dissimilar provisions or conditions at the same time or any prior or
subsequent time.
(i) NOTICES. Notices given pursuant to this Agreement shall be in
writing, and shall be deemed given when received if personally delivered, or on
the first (1st) business day after deposit with a commercial overnight delivery
service. Notices to the Employer shall be addressed and delivered to the
principal headquarters office of the Employer, Attention: President and Chief
Executive Officer, with a copy concurrently so delivered to General Corporate
Counsel to the Employer, Barack Ferrazzano Kirschbaum Perlman & Nagelberg, 333
West Wacker Drive, Suite 2700, Chicago, Illinois 60606, to the joint attention
of Lynne D. Mapes-Riordan and Howard A. Nagelberg. Notices to the Executive
shall be sent to the address set forth below the Executive's signature on this
Agreement, or to such other address as Executive may hereafter designate in a
written notice given to the Employer and its counsel.
(j) COUNTERPARTS. This Agreement and any amendments thereto may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
26
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
FIRST INDUSTRIAL REALTY TRUST, MICHAEL J. HAVALA
INC., a Maryland corporation
By: /s/ Michael W. Brennan /s/ Michael J. Havala
----------------------------------- ------------------------------
Michael W. Brennan Address of Executive:
President and Chief Executive Officer
3107 Treesdale Court
Naperville, Il 60564
27
28
MICHAEL J. HAVALA
EMPLOYMENT AGREEMENT (THE "AGREEMENT")
EXHIBIT A
The Executive's Maximum Performance Bonus under Section 2(b) of the
Agreement shall be equal to the sum of the following percentages of his Base
Salary, as such percentages are modified from time to time by the Compensation
Committee of the Board in accordance with its procedures governing the review
and modification of executive compensation for the Employer:
---------------------------------------------------------
BONUS COMPONENTS MAXIMUM
---------------- -------
---------------------------------------------------------
Cash Bonus 180%
---------------------------------------------------------
Equity-Based Bonus 140%
---------------------------------------------------------
A-1
29
MICHAEL J. HAVALA
EMPLOYMENT AGREEMENT (THE "AGREEMENT")
EXHIBIT B
The Executive's Scheduled Benefits are those provided according to the
following plans:
A. First Industrial Realty Trust, Inc. 1994 Stock Incentive Plan and
related awards and grant agreements thereunder.
B. First Industrial Realty Trust, Inc. 1997 Stock Incentive Plan and
related awards and grant agreements thereunder.
C. First Industrial Realty Trust, Inc. Deferred Income Plan.
B-1
30
MICHAEL J. HAVALA
EMPLOYMENT AGREEMENT (THE "AGREEMENT")
EXHIBIT C
EXAMPLE #1
CALCULATION OF HYPOTHETICAL DOUBLE HISTORICAL AVERAGE CASH BONUS
WITH NO IMPACT OF DEFICIENT BONUS YEAR ADJUSTMENT
The first example below is a calculation that would be performed pursuant to
Section 3(h)(i)(A)(3) of the Agreement.
Assume the following:
- Change in Control Termination is February 1, 2000.
- Base Salary during 1998, 1999 was $100,000.
- Base Salary as of Change in Control Termination is $150,000.
- For 1998 and 1999 the Maximum Cash Performance Bonus Percentage was
150%.
- For 2000 the Maximum Cash Performance Bonus Percentage is 180%.
- Cash Performance Bonus for 1998 was $150,000 (or 100% of Maximum Cash
Performance Bonus).
- Cash Performance Bonus for 1999 was $75,000 (or 50% of Maximum Cash
Performance Bonus).
- Equity-Based Performance Bonus value for 1999 was not more than
$100,000 (See below for example of year in which such value was
$100,000 or more).
Step 1 - Determine Historical Average Cash Bonus Percentage
1998 Cash Bonus Percentage
(as a Percentage of the Maximum Cash Bonus Percentage) 100%
1999 Cash Bonus Percentage
(as a Percentage of the Maximum Cash Bonus Percentage) 50%
----
Average of above percentages is the
Historical Average Cash Bonus Percentage 75%
====
Step 2 - Determine Change in Control Bonus Percentage
Historical Prior Average Cash Bonus Percentage 75%
Multiplied by Maximum Cash Performance Bonus
Percentage for year of Change in Control Termination x 180%
----
Change in Control Bonus Percentage is: 135%
====
C-1
31
Step 3 - Determine Historical Average Cash Bonus
Change in Control Bonus Percentage 135%
Multiplied by Base Salary as of Change
in Control Termination x $150,000
--------
Historical Average Cash Bonus is: $202,500
========
Step 4 - Determine Double Historical Average Cash Bonus
Historical Average Cash Bonus $202,500
Multiplied by 2 x 2
--------
Double Historical Average Cash Bonus is: $405,000
========
EXAMPLE #2
CALCULATION OF HYPOTHETICAL DOUBLE HISTORICAL AVERAGE CASH BONUS
WITH DEFICIENT BONUS YEAR ADJUSTMENT
The second example assumes that the 1999 Cash Performance Bonus triggers a
Deficient Bonus Year.
Assume the following:
- The facts presented in Example #1 remain static
- Equity-based Performance Bonus value for 1999 was $100,000 (contrary
to Example #1)
Step 1 - Determine Historical Average Cash Bonus Percentage
1998 Cash Bonus Percentage
(as a Percentage of the Maximum Cash Bonus Percentage) 100%
1999 Cash Bonus Percentage
(as a Percentage of the Maximum Cash Bonus Percentage) 50%
----
Average of above percentages is the Historical Average
Cash Bonus Percentage 75%
====
Step 2 - Determine whether 1998 or 1999 was a "Deficient Bonus Year"
- 1998 was not a Deficient Bonus Year, because the Cash
Performance Bonus Percentage paid was 100% of the Maximum
Cash Performance Bonus.
C-2
32
- 1999 was a Deficient Bonus Year, because the Cash Bonus
Percentage was 75%, which is less than 100%, and the value
of the equity-based performance bonus was $100,000 or more
(contrary to Example #1). Because 1999 is a Deficient Bonus
Year, the 1999 75% Cash Bonus Percentage is deemed to be
100% for purposes of the calculation of the Double
Historical Average Cash Bonus.
Step 3 - Determine Historical Average Cash Bonus Percentage using 100%
for 1999
1998 Cash Bonus Percentage 100%
1999 Deemed Cash Bonus Percentage 100%
----
Average of above percentages is Historical Average
Cash Bonus Percentage 100%
====
Step 4 - Determine Change in Control Bonus Percentage
Historical Average Cash Bonus Percentage 100%
Multiplied by Maximum Cash Performance
Bonus Percentage for year of Change in
Control Termination x 180%
----
Change in Control Bonus Percentage is: 180%
====
Step 5 - Determine Historical Average Cash Bonus
Change in Control Bonus Percentage 180%
Multiplied by Base Salary as of Change
in Control Termination x $150,000
--------
Historical Average Cash Bonus is: $270,000
========
Step 6 - Determine Double Historical Average Cash Bonus
Historical Average Cash Bonus $270,000
Multiplied by 2 x 2
--------
Double Historical Average Cash Bonus is: $540,000
========
C-3
33
MICHAEL J. HAVALA
EMPLOYMENT AGREEMENT (THE "AGREEMENT")
EXHIBIT D
A copy of the list of industrial and mixed office/industrial REIT and Real
Estate Operating Companies as published in the Realty Stock Review, a Dow Jones
& Co. publication, for the month prior to the Effective Date of the Agreement is
attached hereto.
D-1
1
EXHIBIT 10.4
JOHANNSON L. YAP
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), is made and entered into as
of the 26 day of July, 2000 (the "Effective Date"), by and between First
Industrial Realty Trust, Inc., a Maryland corporation (the "Employer"), and
Johannson L. Yap (the "Executive").
RECITALS
A. The Employer desires to employ the Executive as an officer of the
Employer for a specified term.
B. The Executive is willing to accept such employment, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements hereinafter contained, it is covenanted and agreed by and between the
parties hereto as follows:
AGREEMENTS
1. POSITION AND DUTIES. The Employer hereby employs the Executive as
Chief Investment Officer of the Employer, or in such other comparable or other
capacity as shall be mutually agreed between the Employer and the Executive by
amendment of this Agreement. During the period of the Executive's employment
hereunder, the Executive shall devote his best efforts and full business time
(excluding any periods of disability, vacation, sick leave or other leave to
which the Executive is entitled), energy, skills and attention to the business
and affairs of the Employer, on an exclusive basis. The Executive's duties and
authority shall consist of and include all duties and authority customarily
performed and held by persons holding equivalent positions with real estate
investment trusts ("REIT's") similar in nature and size to the Employer, as such
duties and authority are reasonably defined, modified and delegated from time to
time by the Chief Executive Officer of the Employer (the "CEO"). The Executive
shall have the powers necessary to perform the duties assigned to him, and shall
be provided such supporting services, staff, secretarial and other assistance,
office space and accouterments as shall be reasonably necessary and appropriate
in light of such assigned duties, as determined by the CEO, but in any event
shall be no less favorable to the Executive than such supporting services,
assistance, office space and accouterments provided to other Senior Headquarters
Executives (as defined in Section 2(c) below) of the Employer.
2. COMPENSATION. As compensation for the services to be provided by the
Executive hereunder, the Executive shall receive the following compensation and
other benefits:
(a) BASE SALARY. The Executive shall receive a minimum aggregate
annual "Base Salary" at the rate of Two Hundred and Thirty-five Thousand Dollars
($235,000) per
2
annum, payable in periodic installments in accordance with the regular payroll
practices of the Employer. Such Base Salary shall, during the term hereof, be
subject to discretionary increase (but not decrease), on an annual fiscal year
basis, as recommended by the CEO and approved by the Compensation Committee of
the Board of Directors of the Employer (the "Compensation Committee"), in
accordance with the Employer's compensation policies, as they may be established
from time to time. After any such increase, "Base Salary" shall refer to the
increased amount and shall not thereafter be reduced.
(b) PERFORMANCE BONUS. The Executive may receive an annual
"Performance Bonus," payable within sixty (60) days after the end of the fiscal
year of the Employer. The amount (if any) of and the form of the entitlements
(i.e., cash, equity-based awards, or a combination of cash and equity-based
awards) comprising any annual Performance Bonus shall be as recommended by the
CEO and approved by the Compensation Committee in its sole discretion; shall not
be subject to any minimum or guaranteed amount; and shall be generally based on
a combination of company-wide and individual performance criteria. The
Executive's "Maximum Bonus Percentages" are set forth in Exhibit A to this
Agreement. Prior to January 1 of each calendar year, the Executive shall provide
the CEO with a written "Personal Achievement Plan" that sets forth the
Executive's individual performance goals for such calendar year, which goals
shall reflect and be consistent with the Employer's then-current business plan.
Whether all or any of the individual elements of the Executive's Personal
Achievement Plan are achieved during the year shall guide, but shall not bind,
the CEO in making his recommendation of the amount of the Executive's
Performance Bonus. For purposes of this Agreement, the term "Cash Performance
Bonus" shall mean that component of the Performance Bonus paid or payable in
cash.
(c) BENEFITS. The Executive shall be entitled to participate in all
plans and benefits that may be from time to time accorded to all, and not simply
any one of, the Executive, the Employer's Chief Financial Officer, the
Employer's Chief Operating Officer and the President of the Employer's
affiliate, FI Development Services Corporation (collectively, the "Senior
Headquarters Executives") and shall receive supplemental life and disability
insurance coverages comparable (as a percentage of Base Salary) to those
received by the CEO, all as determined from time to time by the CEO and approved
(if necessary) by the Compensation Committee of the Board. In addition to the
foregoing perquisites, plans and benefits, commencing in fiscal 2000, the
Executive shall receive an annual allowance of two thousand five hundred dollars
($2,500) for personal financial planning and personal income tax preparation,
which allowance shall (i) be paid no later than March 30 of each year and (ii)
increase five percent (5%) per annum (on a compounded basis), commencing as of
the allowance payment due on or before March 30, 2001. If not paid as of the
date of this Agreement, payment of such allowance for fiscal 2000 shall be made
concurrent with the parties' execution of this Agreement.
(d) VACATIONS. The Executive shall be entitled to annual vacations in
accordance with the vacation policy of the Employer, which vacations shall be
taken at a time or times mutually agreeable to the Employer and the Executive;
provided, however, that the Executive shall be entitled to at least four (4)
weeks of paid vacations annually.
2
3
(e) WITHHOLDING. The Employer shall be entitled to withhold, from
amounts payable to the Executive hereunder, any federal, state or local
withholding or other taxes or charges which, from time to time, it is required
to withhold. The Employer shall be entitled to rely upon the advice and counsel
of its independent accountants with regard to any question concerning the amount
or requirement of any such withholding.
3. TERM AND TERMINATION.
(a) TERM. The Executive's employment hereunder shall be for a
continuous and self-renewing two (2) year "evergreen" term (calculated on a day
to day basis), commencing as of the Effective Date, unless sooner terminated at
any time by either party, with or without Cause, such termination to be
effective as of thirty (30) days after written notice to that effect is
delivered to the other party. Notwithstanding the preceding provisions of this
Section 3(a), the term of this Agreement shall, if not previously terminated,
expire of its own accord, and without notice to or from either party, on the
seventieth (70th) birthday of the Executive ("Retirement Date").
(b) PREMATURE TERMINATION WITHOUT NOTICE. Notwithstanding
subparagraph (a) above, the Employer may terminate the Executive's employment on
an immediate basis and without notice, in an emergency circumstance, when
reasonably necessary to preserve or protect the Employer's interests; and in the
case of such an immediate termination, the Employer shall pay the Executive one
(1) month's Base Salary in addition to any other amounts then due to the
Executive as a result of the termination (it being understood that the
applicable termination-based amount then due shall be determined based on the
Section of this Agreement pursuant to which the Executive's employment is
terminated). In the event that the circumstances giving rise to an emergency
termination give rise to payment of a Severance Amount that includes a prorated
Cash Performance Bonus for the then-current year, then such Cash Performance
Bonus shall be prorated as if the Executive had remained employed by the
Employer for an additional period of thirty (30) days beyond the date of actual
immediate emergency termination of his employment as described above.
(c) VOLUNTARY TERMINATION BY EXECUTIVE. In the event that the
Executive voluntarily terminates his employment under this Agreement, other than
pursuant to Section 3(d) (Constructive Discharge) or 3(h) (Change in Control),
then the Employer shall only be required to pay to the Executive such Base
Salary and vacation pay for unused vacation days as shall have accrued and
remain unpaid through the effective date of the termination, and the Employer
shall not be obligated to pay any Performance Bonus for the then-current fiscal
year, or have any further obligations whatsoever to the Executive, other than
payment of any Performance Bonuses previously approved by the Compensation
Committee for any prior fiscal year(s) that remain unpaid, reimbursement of
previously approved expenses, any amounts or rights vested pursuant to the
Scheduled Benefits [as defined in Section 9(b) hereof], and any amounts or
rights vested pursuant to any "employee pension benefit plan" as such term is
defined in Section 3(2)(A) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA").
3
4
(d) CONSTRUCTIVE DISCHARGE. If, at any time during the term of this
Agreement, the Executive is Constructively Discharged (as hereinafter defined),
then the Executive shall have the right, by written notice to the Employer given
within thirty (30) days after such Constructive Discharge, which notice shall
specify the grounds for such Constructive Discharge, to terminate his employment
hereunder, effective as of fifteen (15) days after such notice, and the
Executive shall have no further obligations under this Agreement except as
specified in Sections 4 and 5. The Executive shall in such event receive from
the Employer the Severance Amount and other entitlements described and defined
in subparagraph (g) of this Section 3. Notwithstanding the foregoing, if the
Executive is Constructively Discharged on or within one (1) year after the
occurrence of an event constituting a Change in Control Event [as defined in
subparagraph (h) of this Section 3], then the Executive shall receive the Change
in Control Severance Amount [as defined in subparagraph (h) of this Section 3]
in lieu of the Severance Amount that would otherwise be paid in respect of a
Constructive Discharge under this Section 3(d), and such termination shall also
be deemed a Change in Control Termination for purposes of Section 5 of this
Agreement.
For purposes of this Agreement, the Executive shall be deemed to have
been "Constructively Discharged" upon the occurrence of any one of the following
events:
(i) The Executive shall be removed from the position with the
Employer set forth in Section 1 hereof, by the CEO or the Board, other than as a
result of the Executive's appointment to a position of comparable or superior
authority and responsibility, or other than for Cause, subject, however, to the
following caveats and exclusions, none of which shall constitute a Constructive
Discharge: (A) the Employer shall be permitted to broaden and expand the
Executive's responsibilities, whether in the same or different position; (B) the
Employer may, in connection with Executive's disability as described in Section
3(f), appoint Executive to the position that is both (x) related to the position
set forth in Section 1 hereof and (y) the next highest position then available
with the Employer that the Executive is physically and professionally qualified
to perform at the time of such appointment (the "Substitute Position"); and (C)
the Employer may reduce the Executive's Base Salary to a level that is not less
than the greater of (y) the minimum Base Salary established for fiscal year 1999
as set forth in Section 2(a) hereof and (z) eighty-five percent (85%) of the
Executive's then-current Base Salary, provided that such reduction occurs
generally concurrently with, and as a component of, a comprehensive reduction of
Base Salaries (or reduction in number) of the other Senior Headquarters
Executives then employed by Employer, and provided that, in the context of a
general pay reduction, Executive's Base Salary reduction is reasonably
comparable to that imposed on the other Senior Headquarters Executives; it being
specifically understood and agreed that none of the events described in (A),
(B), and (C) above shall constitute a "Constructive Discharge" hereunder; or
(ii) The Executive shall fail to be vested by the Employer with
the powers, authority and support services customarily attendant to said office
within the REIT industry, other than for Cause and other than due to financial
constraints applicable to the Employer resulting in a generalized reduction of
support services within the Employer; or
4
5
(iii) The Employer shall formally notify the Executive, in
writing, that the employment of the Executive will be terminated (other than for
Cause) or materially modified (other than for Cause) in the future, or that the
Executive will be Constructively Discharged in the future; or
(iv) The Employer shall change the primary employment location
of the Executive to a place that is more than fifty (50) miles from the primary
employment location as of the Effective Date of this Agreement, other than in
connection with a general relocation of the headquarters office (or staff) of
the Employer; or
(v) The Employer shall commit a material breach of its
obligations under this Agreement, which it shall fail to cure or commence to
cure within thirty (30) days after receipt of written notice thereof from the
Executive.
(e) PAYMENTS UPON DEATH. This Agreement shall terminate upon the
death of the Executive. Upon the Executive's death and the resulting termination
of this Agreement, the Employer shall only be obligated to pay such Base Salary
and vacation pay for unused vacation days as shall have accrued and remain
unpaid through the date of death plus seventy-five percent (75%) of his Maximum
Cash Performance Bonus for the then-current year as described in Section 2(b),
such Cash Performance Bonus to be prorated through the date of death on a strict
per diem basis, and the Employer shall not have any further obligations to the
Executive (other than payment of any Performance Bonuses previously approved by
the Compensation Committee for prior fiscal year(s) that remain unpaid,
reimbursement of previously approved expenses, any amounts or rights vested
pursuant to the Scheduled Benefits), and any amounts or rights vested pursuant
to any "employee pension benefit plan" as such term is defined in Section
3(2)(A) of ERISA). The amount that the Employer shall be obligated to pay upon
the Executive's death shall be delivered to such beneficiary, designee or
fiduciary as Executive may have designated in writing or, failing such
designation, to the executor or administrator of his estate, in full settlement
and satisfaction of all claims and demands on behalf of the Executive. Such
payments shall be in addition to such other death benefits of the Employer as
shall have been made available for the benefit of the Executive, and in full
settlement and satisfaction of all payments provided for in this Agreement. The
Employer and the Executive agree that the Employer shall maintain, at all times
during the term of this Agreement, such supplemental life insurance for the
benefit of the Executive as is set forth in Section 2(c) hereof.
(f) PAYMENTS UPON DISABILITY. In the event of the Executive's
"disability" (as defined below), the Employer, acting reasonably and in good
faith, may determine whether or not the basis for, or the cause of, the
Executive's disability is work-related.
(i) If the Employer determines that the basis for, or the cause
of, the Executive's disability is not work-related, the Employer may deliver a
written notice to the Executive advising of the Employer's election to terminate
the Employee's employment, in which case the subject of, and the basis for, the
termination shall be the Executive's disability; and upon delivery of such
termination notice, the Executive's employment shall be terminated.
5
6
Upon the termination of the Executive's employment under this Section 3(e)(i),
the Employer shall only be obligated to pay to the Executive such Base Salary
and vacation pay for unused vacation days as shall have accrued and remain
unpaid through the effective date of termination, and the Employer shall not
have any further obligations to the Executive (other than payment of any
Performance Bonuses previously approved by the Compensation Committee for prior
fiscal year(s) that remain unpaid, reimbursement of previously approved
expenses, any amounts or rights vested pursuant to the Scheduled Benefits, and
any amounts or rights vested pursuant to any "employee pension benefit plan" as
such term is defined in Section 3(2)(A) of ERISA).
(ii) If the basis for, or the cause of, the Executive's
disability is "work-related" (as defined below), then the Employer shall, at the
CEO's election, either (A) terminate the Executive's employment and pay him the
Severance Amount [as defined in subparagraph (g) of this Section 3], in
thirty-six (36) equal monthly installments commencing within thirty (30) days
after the Executive's employment is terminated under this Section 3(f); or (B)
appoint and reassign the Executive to a Substitute Position, as defined in
subparagraph (d)(i) of this Section 3, with an adjustment in Base Salary (and
Performance Bonus targets) to levels then attributable to that Substitute
Position, and such appointment and reassignment shall not constitute a
Constructive Discharge under subparagraph (c) of this Section 3. In the event of
an adjustment in Performance Bonus targets due to reassignment based on
disability, the Performance Bonus for the then-expired portion of the
then-current fiscal year as of such reassignment shall be paid to Executive,
when otherwise due following the termination of such fiscal year, based on a per
diem proration of seventy-five percent (75%) of the Maximum Cash Performance
Bonus for Executive's pre-disability position, prorated through the date of
reassignment. If the Executive declines the Substitute Position, then the
Executive shall be deemed to have voluntarily terminated his employment pursuant
to subparagraph (c) of this Section 3, and he shall be entitled to no Severance
Amount or other entitlements other than those enumerated in Section 3(c) hereof.
(iii) For purposes hereof, the Executive's "disability" shall be
deemed to be "work-related" if the disability is either (A) a result of an
accident or incident that would entitle the Executive to workers' compensation
benefits under the Illinois Workers' Compensation Act, as amended, if such
benefits were sought by the Executive; or (B) a result of an injury sustained at
and during an Employer-sponsored function or event, which function or event is
conducted for business, rather than recreational, purposes (e.g. an annual
retreat that the Executive is required to attend, and at which both business
meetings and recreational activities are conducted, with the Executive required
to participate in all such activities, rather than a company picnic to which the
Executive is invited and at which the Executive elects to participate in
Employer-sponsored recreational activities).
(iv) For purposes hereof, "disability" shall mean the
Executive's inability, as a result of physical or mental incapacity,
substantially to perform his duties hereunder for a period of either six (6)
consecutive months, or one hundred twenty (120) business days within a
consecutive twelve (12) month period. In the event of a dispute regarding the
Executive's "disability," or whether the basis for, or the cause of, the
disability
6
7
is "work-related," such dispute shall be resolved through arbitration as
provided in subparagraph (d) of Section 9 hereof, except that the arbitrator
appointed by the American Arbitration Association shall be a duly licensed
medical doctor.
(v) The Executive shall be entitled to the compensation and
benefits provided under this Agreement during any period of incapacitation
occurring during the term of this Agreement prior to the establishment of the
Executive's "disability" and subsequent termination of his employment.
(vi) The Employer and the Executive agree that the Employer
shall maintain, at all times during the term of this Agreement, such
supplemental disability insurance for the benefit of the Executive as is set
forth in Section 2(c) hereof.
(vii) During the period that the monthly payments are made under
subparagraph (ii) above, such payments shall be reduced by the amount of the
monthly disability payments made under the supplemental disability insurance
maintained by the Employer for the benefit of the Executive as is set forth in
Section 2(c) hereof.
(g) PAYMENTS UPON TERMINATION WITHOUT CAUSE OR THROUGH CONSTRUCTIVE
DISCHARGE. In the event of the termination of the employment of the Executive
under this Agreement: (y) by the Employer "Without Cause," meaning for any
reason other than in accordance with the provisions of subparagraph (e) (death),
subparagraph (f) (disability), subparagraph (h) (Change in Control) or
subparagraph (j) (for Cause) of this Section 3; or (z) by the Executive pursuant
to a Constructive Discharge under subparagraph (d) of this Section 3; then
notwithstanding any actual or allegedly available alternative employment or
other mitigation of damages by (or which may be available to) the Executive, the
Employer shall provide Executive with the following entitlements:
(i) The Employer shall pay to the Executive, subject to the
"Age-Based Adjustments" provided and defined in Section 3(i) below, a "Severance
Amount" equal to the sum of:
(A) three (3) times the then-current annual amount of his
Base Salary; plus
(B) seventy-five percent (75%) of his Maximum Cash
Performance Bonus for the then-current year as
described in Section 2(b), such Cash Performance Bonus
to be prorated through the date of termination on a
strict per diem basis.
(ii) The Employer shall also:
(A) notwithstanding the vesting schedule otherwise
applicable, fully vest Executive's options, other than
options that may by their terms vest upon or be
subject to the attainment of
7
8
any individual or company-wide performance criteria
(e.g., and without limitation, Consolidated Incentive
Program options), outstanding under the First
Industrial Realty Trust, Inc. 1994 Stock Incentive
Plan, the First Industrial Realty Trust 1997 Stock
Incentive Plan and any similar plan subsequently
adopted by the Employer (collectively referred to
herein as the "SIP Options"), and awards outstanding
under the First Industrial Realty Trust, Inc. Deferred
Income Plan ("DIP Awards"), effective as of the date
of termination;
(B) notwithstanding the terms of the grant or award
documentation, release and eliminate all unexpired
transfer and encumbrance restrictions otherwise
applicable to any restricted stock owned by the
Executive, effective as of the date of termination;
(C) allow a period of eighteen (18) months following the
termination of employment for the Executive to
exercise any such SIP Options; and
(D) continue for the Executive his health insurance
coverage, whether single or family, so as to provide a
scope of coverage comparable to that which was in
effect as of the date of termination, for a period of
three (3) years following such termination or until
such time as substitute health insurance coverage with
comparable benefits is available to him at a cost
comparable to that borne by him under the Employer's
policy, by virtue of other employment or family
members' insurance benefits secured or made available
after termination.
(iii) The entitlements described in this subparagraph (g) shall
be in addition to the payment of such Base Salary and vacation pay for unused
vacation days as shall have accrued and remain unpaid through the effective date
of termination, and the payment of any Performance Bonuses previously approved
by the Compensation Committee for prior fiscal year(s) that remain unpaid,
reimbursement of previously approved expenses, any amounts or rights vested
pursuant to the Scheduled Benefits, and any amounts or rights vested pursuant to
any "employee pension benefit plan" as such term is defined in Section 3(2)(A)
of ERISA.
(iv) Payment to the Executive of the Severance Amount and those
items enumerated in subparagraph (iii) above will be made in a single lump sum
within thirty (30) days after a termination effectuated by the Employer Without
Cause or by the Executive based on Constructive Discharge.
8
9
(h) CHANGE IN CONTROL.
(i) In the event of a Change in Control (as defined below) of
the Employer resulting in or associated with (as, when and to the extent herein
provided) the termination of the Executive's employment which is undertaken at
the initiative of either (y) the Employer under subparagraph (h)(ii)(A) below,
or (z) the Executive, under subparagraph (h)(ii)(B) below ("Change in Control
Termination"), the following entitlements shall become operative:
(A) The Executive shall be entitled to receive a "Change
in Control Severance Amount" equal to the sum of the
following amounts:
(1) two (2) times the then-current annual amount of
his Base Salary; plus
(2) his Maximum Cash Performance Bonus for the
then-current fiscal year as described in Section
2(b), prorated through the date of termination on
a strict per diem basis; plus
(3) a "Double Historical Average Cash Bonus," which
shall be calculated as follows: first, there will
be a computation of the average of the
percentages of his Maximum Cash Performance Bonus
paid (or that have been declared, but remain
unpaid, as of the date of a Change in Control
Termination) as annual Cash Performance Bonuses
for the two (2) immediately preceding fiscal
years of the Employer ("Historical Average Cash
Bonus Percentage"); second, the Historical
Average Cash Bonus Percentage will then be
multiplied by his Maximum Cash Performance Bonus
Percentage attributable to the year of his Change
in Control Termination, with the resulting
percentage thereby derived being his "Change in
Control Bonus Percentage"; third, the Change in
Control Bonus Percentage shall be multiplied by
his Base Salary as of the date of his Change in
Control Termination, with the resulting product
being his "Historical Average Cash Bonus"; and
fourth, his Historical Average Cash Bonus is
multiplied by two (2), with the resulting product
being his "Double Historical Average Cash Bonus."
See Example #1 on Exhibit C hereto for a
9
10
mathematical example of the preceding
calculation. Notwithstanding the immediately
preceding sentence and Example #1 on Exhibit C,
in the event that (i) the Cash Performance Bonus
paid for either of the two (2) fiscal years
immediately preceding a Change in Control
Termination is less than 100% of the Maximum Cash
Performance Bonus Percentage for such fiscal
year, and (ii) an equity-based Performance Bonus
having a stated aggregate value as of issuance of
$100,000 or more was granted to the Executive in
respect of such years (such year in which (i) and
(ii) occur thereby constituting a "Deficient
Bonus Year"), then for purposes of calculating
the Double Historical Average Cash Bonus
component of the Change in Control Severance
Amount, the minimum Cash Bonus Percentage for any
Deficient Bonus Year (or Years) will be 100%. See
Example #2 on Exhibit C hereto for a mathematical
example of the immediately preceding calculation.
If, as of a Change in Control Event, the
Executive has not received (or had declared by
the Compensation Committee) two Historical Cash
Performance Bonuses with respect to, and while
holding, the position set forth in Section 1,
then the percentage of Maximum Cash Performance
Bonus used to calculate the Historical Cash Bonus
Percentages shall be the percentage of Maximum
Cash Performance Bonus paid to Executive's
predecessor with respect to the particular
position set forth in Section 1 during that
portion of the two (2) preceding fiscal years of
the Employer during which Executive did not hold
the requisite position, subject to a minimum
percentage of 100% for any Deficient Bonus Year
arising on the basis of his predecessor's
compensation history.
(B) The Employer shall also provide the following
entitlements to the Executive:
(1) notwithstanding the vesting schedule otherwise
applicable, the Employer shall fully vest
Executive's options, other than options that may
by their terms vest upon or be subject to the
10
11
attainment of any individual or company-wide
performance criteria (e.g., and without
limitation, Consolidated Incentive Program
options), outstanding under the First Industrial
Realty Trust, Inc. 1994 Stock Incentive Plan, the
First Industrial Realty Trust 1997 Stock
Incentive Plan and any similar plan subsequently
adopted by the Employer (collectively referred to
herein as the "SIP Options"), and awards
outstanding under the First Industrial Realty
Trust, Inc. Deferred Income Plan ("DIP Awards"),
effective as of date of the Change in Control
Termination;
(2) notwithstanding the terms of the grant or award
documentation, the Employer shall release and
eliminate all unexpired transfer and encumbrance
restrictions otherwise applicable to any
restricted stock owned by the Executive,
effective as of date of the Change in Control
Termination;
(3) the Employer shall allow a period of eighteen
(18) months following the termination of
employment for the Executive to exercise any such
SIP Options; and
(4) the Employer shall continue for the Executive his
health insurance coverage, whether single or
family, in effect as of the date of termination
for three (3) years following such termination or
until such time as substitute health insurance
with comparable benefits is available to him at a
cost comparable to that borne by him under the
Employer's policy, by virtue of other employment
or family members' insurance benefits secured or
made available after termination.
(C) The Change in Control Severance Amount shall:
(1) be reduced by any amount paid or otherwise
payable to the Executive pursuant to Sections
3(d) (Constructive Discharge), 3(e) (disability)
or 3(g) (termination by Employer without Cause);
and
(2) be in addition to: such current Base Salary and
vacation pay for unused vacation days as shall
have accrued and remain unpaid as of the
effective
11
12
date of termination; the payment of amounts any
Performance Bonuses previously approved by the
Compensation Committee for prior fiscal year(s)
that remain unpaid; reimbursement of previously
approved or otherwise authorized expenses; any
amounts or rights theretofore vested pursuant to
the Scheduled Benefits; and any amounts or rights
vested pursuant to any "employee pension benefit
plan" as such term is defined in Section 3(2)(A)
of ERISA.
(D) The Change in Control Severance Amount will be paid in
a single lump sum, on (I) the date of the Change in
Control Event, if the Executive's employment is in
fact terminated concurrent with the Change in Control
Event [or was terminated by the Employer prior to the
Change in Control Event so as to give rise to a Change
in Control Severance Amount entitlement as of the
Change in Control Event, pursuant to subparagraph
(ii)(A) below]; or (II) within thirty (30) days after
the Executive terminates his employment following a
Change in Control Event under subparagraph (ii)(B)
below.
(ii) The following (and only the following) events shall
constitute a Change in Control Termination under this subparagraph (h):
(A) Executive's employment is terminated by the Employer
(or its successor) for any reason other than for Cause
or due to death or disability, within either of the
respective three hundred sixty-five (365) day periods
either preceding or following the event constituting a
Change in Control; or
(B) The Executive terminates his employment under this
Agreement upon and through written notice given to the
Employer within thirty (30) days after the occurrence
of a "Triggering Circumstance," as defined and
described below, such right of termination to exist
only if (x) the Triggering Circumstance described in
(i) or (ii) below occurs within a period of three
hundred sixty-five (365) days following a Change in
Control Event; or (y) either of the Triggering
Circumstances described in (iii) or (iv) below occurs
within a period of seven hundred thirty (730) days
[subject to extension for (iii) as set forth below]
following a Change in Control Event. The
12
13
following shall constitute "Triggering Circumstances"
hereunder, entitling the Executive to terminate his
employment following a Change in Control Event and
receive a Change in Control Severance Amount: (i) the
Change in Control Event gives rise to a change in
employment circumstances that would otherwise
constitute a Constructive Discharge; (ii) the Change
in Control Event results in a relocation of the
Executive's primary place of employment to a location
that is more than fifty (50) miles from his primary
employment location with Employer as of the Effective
Date of this Agreement, even if such relocation is
pursuant to a general merger-induced or other general
headquarters office relocation and would, in the
absence of a Change in Control Event, not constitute a
Constructive Discharge hereunder; (iii) the Company
(or its successor), following the Change in Control
Event, pays Cash Performance Bonuses to the Executive,
attributable to either of those two (2) certain fiscal
years respectively constituting (w) the fiscal year in
which the Change in Control Event occurs and (x) the
next succeeding fiscal year ("Post-CIC Fiscal Years"),
at a level that is less than the greater of (y) the
amount equal to the average of the percentages of Base
Salary paid as Cash Performance Bonuses for the two
(2) fiscal years preceding the Change in Control Event
and (z) the amount equal to one hundred percent (100%)
of the respective Base Salaries then in place for each
of the Post-CIC Fiscal Years [it being understood that
the seven hundred thirty (730) day period for
determining whether there is a deficiency in a Cash
Performance Bonus for the second of the two (2)
Post-CIC Fiscal Years shall be extended as necessary
to encompass the date on which the Cash Performance
Bonus for the second Post-CIC Fiscal Year is actually
paid]; or (iv) the annual Base Salary payable to the
Executive for either Post-CIC Fiscal Year is less than
the Base Salary in effect as of the occurrence of the
Change in Control Event. In addition to the foregoing
Triggering Circumstance events described in (i)
through (iv) above giving rise to the Executive's
right to effectuate a Change in Control Termination,
it shall also constitute a Triggering Circumstance,
and the Executive shall also be entitled to effectuate
such Change in Control Termination if, as of the
effective date of a Change in Control Event, the
successor employer/acquiring entity does not affirm,
in writing, its assumption of the
13
14
obligations of the Employer under this Agreement, and
its agreement to perform such obligations for the
benefit of the Executive following the Change in
Control Event. Any Change in Control Termination by
the Executive shall be effectuated by written notice
provided to the Employer or its successor within
thirty (30) days following the Executive's actual
knowledge of the first occurrence of a Triggering
Circumstance which, in the case of (iii) or (iv)
above, shall constitute the Executive's receipt of the
initial non-conforming Base Salary payment or Cash
Performance Bonus payment in question. The failure of
the Executive to give a timely notice of termination
as hereinabove provided following the occurrence of a
Triggering Circumstance shall constitute a waiver of
the Executive's right to initiate a Change in Control
Termination by reason of such Triggering Circumstance.
Executive shall have no right to initiate a Change in
Control Termination giving rise to an entitlement to a
Change in Control Severance Amount unless a Triggering
Circumstance shall have occurred and shall have been
acted upon by Executive on a timely basis as
hereinabove provided.
(iii) For purposes of this Agreement, the term "Change in Control
Event" shall mean the following events:
(A) The consummation of the acquisition by any person [as
such term is defined in Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "1934
Act")] of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the 1934 Act) of forty
percent (40%) or more of the combined voting power
embodied in the then-outstanding voting securities of
the Employer; or
(B) The persons who, as of the date hereof, constitute the
Employer's Board of Directors (the "Incumbent
Directors") cease, in opposition to the Nominating
Committee of the Board and as a result of a tender
offer, proxy contest, merger or similar transaction or
event (as opposed to turnover caused by death or
resignation), to constitute at least a majority of the
Board, provided that any person becoming a director of
the Employer subsequent to the date hereof whose
election or nomination for election was approved by a
vote of at least
14
15
a majority of the Incumbent Directors, or by a
Nominating Committee duly appointed by such Incumbent
Directors, or by successors of either who shall have
become Directors other than as a result of a hostile
attempt to change Directors, whether through a tender
offer, proxy contest or similar transaction or event
shall be considered an Incumbent Director; or
(C) The consummation of:
(1) a merger or consolidation of the Employer, if the
stockholders of the Employer as constituted in
the aggregate immediately before such merger or
consolidation do not, as a result of and
following such merger or consolidation, own,
directly or indirectly, more than seventy-five
percent (75%) of the combined voting power of the
then outstanding voting securities of the entity
resulting from such merger or consolidation in
substantially the same proportion as was
represented by their ownership of the combined
voting power of the voting securities of the
Employer outstanding immediately before such
merger or consolidation; or
(2) a liquidation, sale or other ultimate disposition
or transfer of all or substantially all of the
total assets of the Employer and its
subsidiaries, which shall be deemed to have
occurred for purposes of ascertaining when a
Change in Control Event has taken place when, as
and if the Employer shall have disposed, in a
single transaction or set of related
transactions, of more than fifty percent (50%) of
its and its subsidiaries' total real estate
portfolio, pursuant to a declared plan of
liquidation, such percentage of the portfolio to
be deemed to have been transferred at such time
as the Employer and its Subsidiaries shall have
disposed of fifty percent (50%) or more of their
properties in relation to overall undepreciated
(i.e. cost-based) book value, net operating
income or square footage of developed properties.
(iv) Notwithstanding the immediately preceding subparagraph
(iii), a Change in Control Event shall not be deemed to occur solely because
forty percent (40%) or
15
16
more of the combined voting power of the then-outstanding securities of the
Employer is acquired by:
(A) a trustee or other fiduciary holding securities under
one or more employee benefit plans maintained for
employees of the entity; or
(B) any corporation or other entity which, immediately
prior to such acquisition, is substantially owned
directly or indirectly by the Employer or by its
stockholders in the same proportion as their ownership
of stock in the Employer immediately prior to such
acquisition.
(v) If it is determined, in the opinion of the Employer's
independent accountants, in consultation, if necessary, with the Employer's
independent legal counsel, that any Change in Control Severance Amount, either
separately or in conjunction with any other payments, benefits and entitlements
received by the Executive in respect of a Change in Control Termination
hereunder or under any other plan or agreement under which the Executive
participates or to which he is a party, would constitute an "Excess Parachute
Payment" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), and thereby be subject to the excise tax imposed
by Section 4999 of the Code (the "Excise Tax"), then in such event the Employer
shall pay to the Executive a "grossing-up" amount equal to the amount of such
Excise Tax, plus all federal and state income or other taxes with respect to the
payment of the amount of such Excise Tax, including all such taxes with respect
to any such grossing-up amount. If, at a later date, the Internal Revenue
Service assesses a deficiency against the Executive for the Excise Tax which is
greater than that which was determined at the time such amounts were paid, then
the Employer shall pay to the Executive the amount of such unreimbursed Excise
Tax plus any interest, penalties and reasonable professional fees or expenses
incurred by the Executive as a result of such assessment, including all such
taxes with respect to any such additional amount. The highest marginal tax rate
applicable to individuals at the time of the payment of such amounts will be
used for purposes of determining the federal and state income and other taxes
with respect thereto. Employer shall withhold from any amounts paid under this
Agreement the amount of any Excise Tax or other federal, state or local taxes
then required to be withheld. Computations of the amount of any grossing-up
supplemental compensation paid under this subparagraph shall be conclusively
made by the Employer's independent accountants, in consultation, if necessary,
with the Employer's independent legal counsel. If, after the Executive receives
any gross-up payments or other amount pursuant to this subparagraph (v), the
Executive receives any refund with respect to the Excise Tax, the Executive
shall promptly pay the Employer the amount of such refund within ten (10) days
of receipt by the Executive.
(i) AGE-BASED ADJUSTMENTS. It is recognized and acknowledged that
Executive intends and wishes to retire by the Retirement Date, on which date he
shall have attained the age of seventy (70), which shall be the mandatory
retirement age for senior management of the Employer. This Agreement shall
accordingly terminate, on an automatic
16
17
basis, as provided in Section 3(a) above, as of said Retirement Date. In
addition, it is mutually acknowledged and agreed that the Severance Amount owed
to the Executive in the event of a termination of this Agreement pursuant to
Section 3(d) or 3(g) hereof (respectively dealing with Constructive Discharge
and termination by Employer without Cause) shall be gradually reduced during the
three (3) year pre-retirement transition period preceding the Retirement Date,
by being made subject to "Age-Based Adjustments," based on the following
schedule:
Age of Executive as of % of Severance Amount Due
Date of Termination Per Age-Based Adjustment
---------------------- -------------------------
67 75%
68 50%
69 25%
70 0%
(i) TERMINATION FOR CAUSE. The employment of the Executive under this
Agreement may be terminated by the Employer on the basis of "Cause," as
hereinafter defined. If the Executive's employment is terminated by the Employer
for Cause under this subparagraph (j), then the Employer shall only be obligated
to pay to the Executive such Base Salary and vacation pay for unused vacation
days as shall have accrued and remain unpaid through the effective date of
termination, but the Employer shall not be required to pay to the Executive any
Performance Bonus for the then-current fiscal year, or have any further
obligations whatsoever to the Executive, other than any Performance Bonuses
previously approved by the Compensation Committee for prior fiscal year(s) that
remain unpaid; reimbursement for previously approved expenses; and continuation
of any amounts or rights vested pursuant to the Scheduled Benefits that remain
vested upon and notwithstanding the Executive's termination for Cause, in which
event such rights to payment or continuation shall be determined pursuant to the
terms of the plans under which such Scheduled Benefits are provided, and not the
terms of this subparagraph (j) of Section 3. Termination for "Cause" shall mean
the termination of the Executive's employment on the basis or as a result of:
(i) the Executive being found guilty of a felony; (ii) the Executive's
commission of an act that disqualifies the Executive (whether under the
Employer's by-laws, or under any statute, regulation, law or rule applicable to
the Employer) from serving as an officer or director of the Employer; or (iii) a
recurring pattern of material and willful dereliction of duty of the Executive's
material responsibilities, where such recurring failure has a material adverse
effect upon the business of the Employer, as reasonably determined by the CEO,
in the CEO's good faith determination. In making such determination, it is
understood that the CEO shall interpret and apply the above-described standards
(of materiality, or willful dereliction, and of adversity) in a manner that is
normal and customary within the Employer's industry. Executive shall be entitled
to thirty (30) days' prior written notice (the "Termination Notice") of the
Employer's intention to terminate his employment for Cause, and such Termination
Notice shall: specify the grounds for such termination; afford the Executive a
reasonable opportunity to cure any conduct or act (if curable) alleged as
grounds for such termination; and a reasonable opportunity to present to the CEO
his position regarding any dispute relating to the existence of such Cause.
Notwithstanding the foregoing procedure, the Employer (through
17
18
the CEO) shall have the unilateral right to make the final substantive
determination as to whether the Executive (through the CEO) has properly
remedied or otherwise addressed those matters described in the Termination
Notice as grounds for termination of the Executive's employment; and in the
event that the Employer determines (as of the expiration of the
above-contemplated 30-day period), that the Executive has not appropriately
remedied or otherwise addressed those matters, then the Executive's term of
employment shall, in all events, automatically terminate as of the thirtieth
(30th) day after the Employer delivers the Termination Notice, without any
responsibility or obligation of the Employer to provide the Executive with any
further notice or explanation of the grounds for his termination. If the
Executive challenges his termination for Cause under the provisions of Section
9(d) hereof and the arbitrator finds that the Executive did not engage in
conduct which properly entitled the Employer to terminate the Executive's
employment for Cause under the criteria set forth above, then the Employer shall
pay to the Executive, within thirty (30) days of the arbitrator's decision: the
Severance Amount as if his termination of employment had been effectuated
pursuant to Section 3(g) hereunder; with interest on the Severance Amount at the
rate of eighteen percent (18%) from the date of the Termination Notice to the
date payment is ordered made of such Severance Amount to be paid thereon; plus
the amount of the Executive's reasonable attorneys' fees incurred in such
arbitration.
(k) RESIGNATION FROM RELATED POSITIONS. Upon the termination of the
Executive's employment with the Employer, for any reason whatsoever, the
Executive shall immediately resign from any and all officerships, directorships,
committee memberships and all other elected or appointed positions, of any
nature, that the Executive then holds with any or all of the Employer and its
affiliates.
(l) STOCK REDEMPTION. Upon the termination of the Executive's
employment with the Employer, for any reason whatsoever, the Executive shall
permit the Employer or its affiliate(s), as the case may be, to immediately
redeem any and all common or preferred stock (or any partnership or membership
interests, as the case may be) that the Executive then owns in any affiliate(s)
of Employer, which redemption shall occur at the same cash price (if any) as
Executive actually initially paid to acquire such stock (or partnership or
membership interests, as the case may be). In no event, however, shall the
foregoing requirement apply to any stock (common or preferred) that Executive
owns in Employer, or to any limited partnership interests (so-called "OP Units")
that the Executive owns in First Industrial, L.P., a Delaware limited
partnership in which the Employer is the general partner and which is commonly
referred to as the "Operating Partnership."
4. CONFIDENTIALITY AND LOYALTY. The Executive acknowledges that, during
the course of his employment prior to his entry into this Agreement, he has
produced, received and had access to, and may hereafter continue to produce,
receive and otherwise have access to, various materials, records, data, trade
secrets and information not generally available to the public, specifically
including any information concerning projects in the "Pipeline" as defined in
Section 5(a)(ii) below (collectively, "Confidential Information") regarding the
Employer and its subsidiaries and affiliates. Accordingly, during the term of
this Agreement and for the one (1) year period immediately subsequent to any
termination of this Agreement, on any
18
19
basis, the Executive shall hold in confidence and shall not directly or
indirectly for his own benefit or for the benefit of any other person or entity,
for economic gain or otherwise, disclose, use, copy or make lists of any such
Confidential Information, except to the extent that (a) such information is or
thereafter becomes lawfully available from public sources; or (b) such
disclosure is authorized in writing by the Employer; or (c) such disclosure is
determined by court order or official governmental ruling to be required by law
or by any competent administrative agency or judicial authority; or (d) such
disclosure is otherwise reasonably necessary or appropriate in connection with
the performance by the Executive of his duties hereunder. All records, files,
documents, computer diskettes, computer programs and other computer-generated
material, as well as all other materials or copies thereof relating to the
Employer's business, which the Executive shall prepare or use, shall be and
remain the sole property of the Employer, shall not be removed from the
Employer's premises without its written consent, and shall be promptly returned
to the Employer upon termination of the Executive's employment hereunder.
5. NON-COMPETITION COVENANT.
(a) RESTRICTIVE COVENANT.
(i) The Employer and the Executive have jointly reviewed the
tenant lists, property submittals, logs, broker lists, and operations of the
Employer, and have agreed that as an essential ingredient of and in
consideration of this Agreement and the Employer's agreement to make the payment
of the amounts described in Sections 2 and 3 hereof when and as herein
described, the Executive hereby agrees, except with the express prior written
consent of the Employer, and subject to the limitations set forth in Section
5(c) below, that for a period of one (1) year [or in the case of a Change in
Control Termination, six (6) months] after the termination of the Executive's
employment with the Employer (the "Restrictive Period"), he will not directly or
indirectly in any manner compete with the business of the Employer, including,
but not by way of limitation, by directly or indirectly owning, managing,
operating, controlling, financing, or by directly or indirectly serving as an
employee, officer or director of or consultant to, or by soliciting or inducing,
or attempting to solicit or induce, any employee or agent of Employer to
terminate employment with Employer and become employed by the following:
(A) any company listed as an industrial or mixed
office/industrial (but not pure office) REIT or Real
Estate Operating Company in the Realty Stock Review, a
Dow Jones & Co. Publication, (a "Peer Group Member") a
copy of such listing for the month prior of the
Effective Date hereof being attached hereto as Exhibit
D, or
(B) any person, firm, partnership, corporation, trust or
other entity (including, but not limited to, Peer
Group Members) which, as a material component of its
business (other than for its own use as an owner or
user), invests in
19
20
industrial warehouse facilities and properties similar
to the Employer's investments and holdings: (1) in any
geographic market or territory in which the Employer
owns properties or has an office either as of the date
hereof or as of the date of termination of the
Executive's employment; or (2) in any market in which
an acquisition or other investment by the Employer or
any affiliate of the Employer is pending as of the
date of termination, as conclusively evidenced by the
existence of a Request for Proposal or an executed
Agreement of Purchase and Sale, Contribution (or
Merger) Agreement or Letter of Intent, Confidentiality
Agreement, Due Diligence Agreement, Pursuit Cost
Agreement, Partnership or Joint Venture Agreement, or
by a Post Acceptance Conference Call (PACC) memorandum
or Investment Committee (IC) approval in existence at
the time of the termination of the Executive's
employment.
(ii) In addition, during the Restrictive Period, the Executive
shall not act as a principal, investor or broker/intermediary, or serve as an
employee, officer, advisor or consultant, to any person or entity, in connection
with or concerning any investment opportunity of the Employer that is in the
"Pipeline" (as defined below) as of the effective date of the termination of the
Executive's employment. Within ten (10) business days after the Executive's
termination of employment, the CEO shall deliver to the Executive a written
statement of the investment opportunities in the Pipeline as of the effective
date of the termination of the Executive's employment (the "Pipeline
Statement"), and the Executive shall then review the Pipeline Statement for
accuracy and completeness, to the best of his knowledge, and advise the CEO of
any corrections required to the Pipeline Statement. The Executive's receipt of
any Severance Amount under Sections 3(c), (f) and (g) shall be conditioned on
his either acknowledging, in writing, the accuracy and completeness of the
Pipeline Statement, or advising the CEO, in writing, of any corrections or
revisions required to the Pipeline Statement in order to make it accurate and
complete, to the best of the Executive's knowledge. The restrictions concerning
any one individual investment opportunity in the Pipeline shall continue until
the first to occur of (i) expiration of the Restrictive Period; or (ii) the
Executive's receipt from the Employer of written notice that the Employer has
abandoned such investment opportunity, such notice not to affect the
restrictions on all other investment opportunities contained in the Pipeline
Statement during the remainder of the Restrictive Period. An investment
opportunity shall be considered in the "Pipeline" if, as of the effective date
of the termination of the Executive's employment, the investment opportunity is
pending (for example, is the subject of a letter of intent) or proposed (for
example, has been presented to, or been bid on by, the Employer in writing or
otherwise) or under consideration by the Employer, whether at the PACC, IC,
staff level(s) or otherwise, and relates to any of the following potential forms
of transaction: (A) an acquisition for cash; (B) an UPREIT transaction; (C) a
transaction under the "First Exchange" program; (D) a development project or
venture; (E) a joint venture partnership or other cooperative
20
21
relationship, whether through a DOWNREIT relationship or otherwise; (F) an
"Opportunity Fund" or other private investment in or co-investment with the
Employer; (G) any debt placement opportunity by or in Employer; (H) any service
or other fee-generating opportunity by the Employer; or (I) any other investment
by the Employer or an affiliate of the Employer, in or with any party or by any
party in the Employer or an affiliate of the Employer.
(iii) The Restrictions contained in subparagraphs (i) and (ii)
above are collectively referred to as the "Restrictive Covenant." If the
Executive violates the Restrictive Covenant and the Employer brings legal action
for injunctive or other relief, the Employer shall not, as a result of the time
involved in obtaining such relief, be deprived of the benefit of the full period
of the Restrictive Covenant. Accordingly, the Restrictive Covenant shall be
deemed to have the duration specified in this subparagraph (i) computed from the
date the relief is granted, but reduced by the time between the period when the
Restrictive Period began to run and the date of the first violation of the
Restrictive Covenant by the Executive. In the event that a successor of the
Employer assumes and agrees to perform this Agreement or otherwise acquires the
Employer, this Restrictive Covenant shall continue to apply only to the primary
markets of the Employer as they existed immediately before such assumption or
acquisition, and shall not apply to any of the successor's other offices or
markets. The foregoing Restrictive Covenant shall not prohibit the Executive
from owning, directly or indirectly, capital stock or similar securities that
are listed on a securities exchange or quoted on the National Association of
Securities Dealers Automated Quotation System and that do not represent more
than five percent (5%) of the outstanding capital stock of any corporation.
(b) RELIEF FROM RESTRICTIVE COVENANTS. In the event the Executive
shall desire to engage in any activity that would violate the Restrictive
Covenant which he reasonably and in good faith believes would be immaterial to
the economic and proprietary interests of the Employer or any of its affiliates,
he may, prior to (but not after) engaging in such activity, submit to the CEO a
written request for relief from the Restrictive Covenant, which written request
shall set forth the scope of the proposed activity, the scope of the requested
relief and the basis upon which Executive believes such activity to be
immaterial to the interests of the Employer. Within ten (10) business days after
receipt of the Executive's written request, and subject to the specific approval
of the Board, the CEO shall advise the Executive, in writing, as to whether the
requested relief shall be granted. The parties agree that such relief shall be
granted only if the CEO reasonably determines that the reasonably anticipated
impact on the Employer of the grant of such relief is in fact immaterial to and
fully compatible with the economic and proprietary interests of the Employer
(and its separate regions, ventures, divisions, subsidiaries and affiliates), it
being specifically hereby understood and acknowledged by the Executive that a
purportedly "minor" percentage impact on company-wide revenues or expenses of
the Employer shall not be deemed to be per se immaterial.
(c) TERMINATION OF RESTRICTIVE COVENANT - CERTAIN CHANGE IN CONTROL
TERMINATION BY EXECUTIVE. If the Executive terminates his employment with the
successor of the Employer following a Change in Control Event in the absence of
a Triggering Circumstance, so as to effectuate a termination of his employment
without any entitlement of
21
22
or claim by the Executive to a Change in Control Severance Amount, then the
Restrictive Covenant set forth in this Section 5 shall not be operative with
respect to the Executive following such termination, during the Restrictive
Period or otherwise, but the obligations of the Executive set forth in Section 4
as to Confidential Information shall remain operative as therein provided.
(d) REMEDIES FOR BREACH OF RESTRICTIVE COVENANT. The Executive
acknowledges that the restrictions contained in Sections 4 and 5 of this
Agreement are reasonable and necessary for the protection of the legitimate
proprietary business interests of the Employer; that any violation of these
restrictions would cause substantial injury to the Employer and such interests;
that the Employer would not have entered into this Agreement with the Executive
without receiving the additional consideration offered by the Executive in
binding himself to these restrictions; and that such restrictions were a
material inducement to the Employer to enter into this Agreement. In the event
of any violation of these restrictions or statement of intent by the Executive
to violate any of these restrictions, the Employer shall automatically be
relieved of any and all further financial and other obligations to the Executive
under this Agreement, in relation to Severance Payments or otherwise, and shall
be entitled to all rights, remedies or damages available at law, in equity or
otherwise under this Agreement; and, without limitation, shall be entitled to
temporary and preliminary injunctive relief, granted by a court of competent
jurisdiction, to prevent or restrain any such violation by the Executive and any
and all persons directly or indirectly acting for or with him, as the case may
be, such injunctive relief to be available pending the outcome of the
arbitration process provided under Section 9(d) of this Agreement, which
arbitration process will entitle the arbitrator to determine that permanent
injunctive relief is to be granted to the Employer, whereupon such relief shall
be granted by a court of competent jurisdiction, based on the determination of
the arbitrator.
6. INTERCORPORATE TRANSFERS. If the Executive shall be transferred by the
Employer to an affiliate of the Employer, such transfer, by itself and without
any adverse financial or functional impact on the Executive, shall not be deemed
a Constructive Discharge or otherwise be deemed to terminate or modify this
Agreement, and the employing corporation or other entity to which the Executive
is transferred shall, for all purposes of this Agreement, be construed as
standing in the same place and stead as the Employer as of the effective date of
such transfer provided, however, that at all times after such transfer, First
Industrial Realty Trust, Inc. shall remain liable for all obligations of the
Employer hereunder, including the payment of all Base Salary, Performance
Bonuses or other amounts set forth herein. For purposes hereof, an affiliate of
the Employer shall mean any corporation or other entity directly or indirectly
controlling, controlled by, or under common control with, the Employer.
7. INTEREST IN ASSETS AND PAYMENTS. Neither the Executive nor his estate
shall acquire any rights in any funds or other assets of the Employer, otherwise
than by and through the actual payment of amounts payable hereunder; nor shall
the Executive or his estate have any power to transfer, assign, anticipate,
pledge, hypothecate or otherwise encumber any of said payments; nor shall any of
such payments be subject to seizure for the payment of any debt, judgment,
alimony, separate maintenance or be transferable by operation of law in the
22
23
event or as a result of any bankruptcy, insolvency or other legal proceeding
otherwise relating to the Executive.
8. INDEMNIFICATION.
(a) During the term of this Agreement and thereafter throughout all
applicable limitations periods, the Employer shall provide the Executive
(including his heirs, personal representatives, executors and administrators),
with such coverage as shall be generally available to senior officers of the
Employer under the Employer's then-current directors' and officers' liability
insurance policy, at the Employer's expense.
(b) In addition to the insurance coverage provided for in paragraph
(a) of this Section 8, the Employer shall defend, hold harmless and indemnify
the Executive (and his heirs, executors and administrators) to the fullest
extent permitted under applicable law, and subject to each of the requirements,
limitations and specifications set forth in the Articles of Incorporation,
Bylaws and other organizational documents of the Employer, against all expenses
and liabilities reasonably incurred by him in connection with or arising out of,
any action, suit or proceeding in which the Executive may be involved by reason
of his having been an officer of the Employer (whether or not he continues to be
an officer at the time of such expenses or liabilities are incurred), such
expenses and liabilities to include, but not be limited to, judgments, court
costs and attorneys' fees and the cost of reasonable settlements.
(c) In the event the Executive becomes a party, or is threatened to
be made a party, to any action, suit or proceeding for which the Employer has
agreed to provide insurance coverage or indemnification under this Section 8,
the Employer shall, to the full extent permitted under applicable law, and
subject to the each of the requirements, limitations and specifications set
forth in the Articles of Incorporation, Bylaws and other organizational
documents of the Employer, advance all expenses (including the reasonable
attorneys' fees of the attorneys selected by Employer and approved by Executive
for the representation of the Executive), judgments, fines and amounts paid in
settlement (collectively "Expenses") incurred by the Executive in connection
with the investigation, defense, settlement, or appeal of any threatened,
pending or completed action, suit or proceeding, subject to receipt by the
Employer of a written undertaking from the Executive covenanting: (i) to
reimburse the Employer for the amount of all of the Expenses actually paid by
the Employer to or on behalf of the Executive in the event it shall be
ultimately determined, by the court or the arbitrator, as applicable to the
case, that the Executive is not entitled to indemnification by the Employer for
such Expenses; and (ii) to assign to the Employer all rights of the Executive to
insurance proceeds, under any policy of directors' and officers' liability
insurance or otherwise, to the extent of the amount of the Expenses actually
paid by the Employer to or on behalf of the Executive.
9. GENERAL PROVISIONS.
(a) SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Executive, the Employer, the Executive's personal
representatives, the Employer's successors and assigns, and any successor or
assign of the Employer shall be
23
24
deemed the "Employer" hereunder. The Executive may neither assign his duties or
obligations this Agreement, nor sell, assign, pledge, encumber, transfer or
hypothecate his entitlement hereunder, and the Employer shall have no obligation
to recognize any such purported alienation, or pay any funds to any party
claiming the benefit thereof.
(b) ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the
entire agreement between the parties respecting the subject matter hereof, and
supersedes all prior negotiations, undertakings, agreements and arrangements
with respect thereto, whether written or oral; provided, however, that all
benefits and rights conferred by those equity-based and other compensation plans
as provided by the plans included on Exhibit B hereto (collectively, the
"Scheduled Benefits") shall be governed by those equity-based and other
compensation plans and ancillary documents, whether adopted or signed prior to
or after the Effective Date of this Agreement and as such are modified by this
Agreement. Except as otherwise explicitly provided herein, this Agreement may
not be amended or modified except by written agreement signed by the Executive
and the Employer.
(c) ENFORCEMENT AND GOVERNING LAW. The provisions of this Agreement
shall be regarded as divisible and separate; if any of said provisions should be
declared invalid or unenforceable by a court of competent jurisdiction, the
validity and enforceability of the remaining provisions shall not be affected
thereby. This Agreement shall be construed and the legal relations of the
parties hereto shall be determined in accordance with the laws of the State of
Illinois, as such state constitutes the situs of the headquarters office of the
Employer and the place of employment hereunder, and such laws shall apply
without reference to the rules of law regarding conflicts of law.
(d) ARBITRATION. Except only as otherwise provided in subparagraph
(d) of Section 5, each and every dispute, controversy and contested factual and
legal determination arising under or in connection with this Agreement or the
Executive's employment by the Employer shall be committed to and be resolved
exclusively through the arbitration process, in an arbitration proceeding,
conducted by a single arbitrator sitting in Chicago, Illinois, in accordance
with the rules of the American Arbitration Association (the "AAA") then in
effect. The arbitrator shall be selected by the parties from a list of eleven
(11) arbitrators provided by the AAA, provided that no arbitrator shall be
related to or affiliated with either of the parties. No later than ten (10) days
after the list of proposed arbitrators is received by the parties, the parties,
or their respective representatives, shall meet at a mutually convenient
location in Chicago, Illinois, or telephonically. At that meeting, the party who
sought arbitration shall eliminate one (1) proposed arbitrator and then the
other party shall eliminate one (1) proposed arbitrator. The parties shall
continue to alternatively eliminate names from the list of proposed arbitrators
in this manner until each party has eliminated five (5) proposed arbitrators.
The remaining arbitrator shall arbitrate the dispute. Each party shall submit,
in writing, the specific requested action or decision it wishes to take, or
make, with respect to the matter in dispute ("Proposed Solution"), and the
arbitrator shall be obligated to choose one (1) party's specific Proposed
Solution, without being permitted to effectuate any compromise or "new"
position; provided, however, that the arbitrator shall be authorized to award
amounts not in dispute during the pendency of any dispute or controversy arising
under or in connection with
24
25
this Agreement. The party whose Proposed Solution is not selected shall bear the
costs of all counsel, experts or other representatives that are retained by both
parties, together with all costs of the arbitration proceeding, including,
without limitation, the fees, costs and expenses imposed or incurred by the
arbitrator. If the arbitrator ultimately chooses the Executive's Proposed
Solution, then the Employer shall pay interest at the rate of eighteen percent
(18%) interest, per annum, on the amount the arbitrator awards to the Executive
(exclusive of attorneys' fees and costs and expenses of the arbitration), such
interest to be calculated from the date the amount payable under the Executive's
Proposed Solution would have been paid under this Agreement, but for the
dispute, through the date payment is ordered made. Judgment may be entered on
the arbitrator's award in any court having jurisdiction, including, if
applicable, entry of a permanent injunction under such subparagraph (d) of
Section 5.
(e) PRESS RELEASES AND PUBLIC DISCLOSURE. Any press release or other
public communication by either the Executive or the Employer with any other
person concerning the terms, conditions or circumstances of Executive's
employment, or the termination of such employment, shall be subject to prior
written approval of both the Executive and the Employer, subject to the proviso
that the Employer shall be entitled to make requisite and appropriate public
disclosure of the terms of this Agreement and any termination hereof, without
the Executive's consent or approval, as may be required under applicable
statutes, and the rules and regulations of the Securities and Exchange
Commission and New York Stock Exchange. Employer shall be entitled to rely on
the advice and counsel of its legal counsel and other professional advisors in
determining whether any such disclosure is required.
(f) PUT DEMAND AS TO RELEASED SECURITIES. If, pursuant to either of
Sections 3(g) or 3(h) hereof, the Employer shall have prematurely released and
eliminated all unexpired transfer and encumbrance restrictions otherwise
applicable to any restricted shares of common stock of the Employer owned by the
Executive, then the Executive shall, on a one-time basis exerciseable within
(30) days of the date of such release of restrictions, have the right to put to
the Employer, and require that the Employer purchase, such shares of restricted
stock as shall have been released as above described ("Released Securities").
Such put shall be exercised by delivery of a "Put Demand" to the Employer, given
in writing pursuant to the notice provisions hereof, which Put Demand: (i) shall
encompass all of the Released Securities owned by the Executive; and (ii) shall
in no event be applicable to or available in respect of any "Exempt Shares,"
which shall constitute those Released Securities that may otherwise be sold by
the Executive, without registration, pursuant to either or both of Rules 144 and
145 of the Securities Act of 1933, as amended, within a period of one hundred
twenty (120) days following the date of the release of the Executive's
restricted shares. Upon its receipt of a timely and otherwise proper Put Demand
from the Executive, the Employer shall thereby and thereupon become obligated,
within a period of ten (10) days following the date of delivery of the Put
Demand, to purchase, for cash, the Released Securities that were the subject of
the Put Demand in question (in all events exclusive of Exempt Shares), at a
price per share equal to the weighted average (by daily trading volume on the
New York Stock Exchange) of the closing price of the Employer's shares of common
stock for the thirty (30) trading days immediately preceding the date of
delivery of the Put Demand. The specific date on which such purchase shall be
consummated and closed shall be established pursuant to the
25
26
mutual agreement of the parties and, in the absence of such agreement, on the
tenth (10th) day following the date of delivery of the Put Demand (and if such
day falls on a weekend or business holiday, then on the first business day
thereafter). By his delivery of a Put Demand, the Executive shall become
irrevocably obligated to sell, at the price above specified, all of the Released
Securities that were the subject of the Put Demand. The transfer of the Released
Securities to the Employer shall be effectuated pursuant to commercially
reasonable and customary stock transfer and other related documentation prepared
at Employer's expense by counsel to the Employer.
(g) INTEREST. If any amount due hereunder is not paid within ten (10)
days of being due, then the Employer or the Executive, as applicable, shall pay
interest at the rate of 200 basis points above the base commercial lending rate
published in The Wall Street Journal in effect from time to time during the
period of such non-payment; provided, however, that if the interest rate set
forth above exceeds the highest legally-permissible interest rate, then the
interest rate shall be reduced to the level of the highest legally permissible
interest rate.
(h) WAIVER. No waiver by either party at any time of any breach by
the other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party, shall be deemed a waiver of any
similar or dissimilar provisions or conditions at the same time or any prior or
subsequent time.
(i) NOTICES. Notices given pursuant to this Agreement shall be in
writing, and shall be deemed given when received if personally delivered, or on
the first (1st) business day after deposit with a commercial overnight delivery
service. Notices to the Employer shall be addressed and delivered to the
principal headquarters office of the Employer, Attention: President and Chief
Executive Officer, with a copy concurrently so delivered to General Corporate
Counsel to the Employer, Barack Ferrazzano Kirschbaum Perlman & Nagelberg, 333
West Wacker Drive, Suite 2700, Chicago, Illinois 60606, to the joint attention
of Lynne D. Mapes-Riordan and Howard A. Nagelberg. Notices to the Executive
shall be sent to the address set forth below the Executive's signature on this
Agreement, or to such other address as Executive may hereafter designate in a
written notice given to the Employer and its counsel.
(i) COUNTERPARTS. This Agreement and any amendments thereto may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
26
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
FIRST INDUSTRIAL REALTY TRUST, JOHANNSON L. YAP
INC., a Maryland corporation
By: /s/ Michael W. Brennan /s/ Johannson L. Yap
------------------------------------ ------------------------------
Michael W. Brennan Address of Executive:
President and Chief Executive Officer
404 Shadow Creek Lane
Riverwoods, Il 60015
27
28
JOHANNSON L. YAP
EMPLOYMENT AGREEMENT (THE "AGREEMENT")
EXHIBIT A
The Executive's Maximum Performance Bonus under Section 2(b) of the
Agreement shall be equal to the sum of the following percentages of his Base
Salary, as such percentages are modified from time to time by the Compensation
Committee of the Board in accordance with its procedures governing the review
and modification of executive compensation for the Employer:
--------------------------------------------------------------
BONUS COMPONENTS MAXIMUM
---------------- -------
--------------------------------------------------------------
Cash Bonus 200%
--------------------------------------------------------------
Equity-Based Bonus 140%
--------------------------------------------------------------
A-1
29
JOHANNSON L. YAP
EMPLOYMENT AGREEMENT (THE "AGREEMENT")
EXHIBIT B
The Executive's Scheduled Benefits are those provided according to the
following plans:
A. First Industrial Realty Trust, Inc. 1994 Stock Incentive Plan and
related awards and grant agreements thereunder.
B. First Industrial Realty Trust, Inc. 1997 Stock Incentive Plan and
related awards and grant agreements thereunder.
C. First Industrial Realty Trust, Inc. Deferred Income Plan.
B-1
30
JOHANNSON L. YAP
EMPLOYMENT AGREEMENT (THE "AGREEMENT")
EXHIBIT C
EXAMPLE #1
CALCULATION OF HYPOTHETICAL DOUBLE HISTORICAL AVERAGE CASH BONUS
WITH NO IMPACT OF DEFICIENT BONUS YEAR ADJUSTMENT
The first example below is a calculation that would be performed pursuant to
Section 3(h)(i)(A)(3) of the Agreement.
Assume the following:
- Change in Control Termination is February 1, 2000.
- Base Salary during 1998, 1999 was $100,000.
- Base Salary as of Change in Control Termination is $150,000.
- For 1998 and 1999 the Maximum Cash Performance Bonus Percentage was
150%.
- For 2000 the Maximum Cash Performance Bonus Percentage is 180%.
- Cash Performance Bonus for 1998 was $150,000 (or 100% of Maximum Cash
Performance Bonus).
- Cash Performance Bonus for 1999 was $75,000 (or 50% of Maximum Cash
Performance Bonus).
- Equity-Based Performance Bonus value for 1999 was not more than
$100,000 (See below for example of year in which such value was
$100,000 or more).
Step 1 - Determine Historical Average Cash Bonus Percentage
1998 Cash Bonus Percentage
(as a Percentage of the Maximum Cash Bonus Percentage) 100%
1999 Cash Bonus Percentage
(as a Percentage of the Maximum Cash Bonus Percentage) 50%
----
Average of above percentages is the
Historical Average Cash Bonus Percentage 75%
====
Step 2 - Determine Change in Control Bonus Percentage
Historical Prior Average Cash Bonus Percentage 75%
Multiplied by Maximum Cash Performance Bonus
Percentage for year of Change in Control Termination x 180%
----
Change in Control Bonus Percentage is: 135%
====
C-1
31
Step 3 - Determine Historical Average Cash Bonus
Change in Control Bonus Percentage 135%
Multiplied by Base Salary as of Change
in Control Termination x $150,000
--------
Historical Average Cash Bonus is: $202,500
========
Step 4 - Determine Double Historical Average Cash Bonus
Historical Average Cash Bonus $202,500
Multiplied by 2 x 2
--------
Double Historical Average Cash Bonus is: $405,000
========
EXAMPLE #2
CALCULATION OF HYPOTHETICAL DOUBLE HISTORICAL AVERAGE CASH BONUS
WITH DEFICIENT BONUS YEAR ADJUSTMENT
The second example assumes that the 1999 Cash Performance Bonus triggers a
Deficient Bonus Year.
Assume the following:
- The facts presented in Example #1 remain static
- Equity-based Performance Bonus value for 1999 was $100,000 (contrary
to Example #1)
Step 1 - Determine Historical Average Cash Bonus Percentage
1998 Cash Bonus Percentage
(as a Percentage of the Maximum Cash Bonus Percentage) 100%
1999 Cash Bonus Percentage
(as a Percentage of the Maximum Cash Bonus Percentage) 50%
----
Average of above percentages is the Historical Average
Cash Bonus Percentage 75%
====
Step 2 - Determine whether 1998 or 1999 was a "Deficient Bonus Year"
- 1998 was not a Deficient Bonus Year, because the Cash
Performance Bonus Percentage paid was 100% of the Maximum
Cash Performance Bonus.
C-2
32
- 1999 was a Deficient Bonus Year, because the Cash Bonus
Percentage was 75%, which is less than 100%, and the value
of the equity-based performance bonus was $100,000 or more
(contrary to Example #1). Because 1999 is a Deficient
Bonus Year, the 1999 75% Cash Bonus Percentage is deemed
to be 100% for purposes of the calculation of the Double
Historical Average Cash Bonus.
Step 3 - Determine Historical Average Cash Bonus Percentage using 100%
for 1999
1998 Cash Bonus Percentage 100%
1999 Deemed Cash Bonus Percentage 100%
----
Average of above percentages is Historical Average
Cash Bonus Percentage 100%
====
Step 4 - Determine Change in Control Bonus Percentage
Historical Average Cash Bonus Percentage 100%
Multiplied by Maximum Cash Performance
Bonus Percentage for year of Change in
Control Termination x 180%
----
Change in Control Bonus Percentage is: 180%
====
Step 5 - Determine Historical Average Cash Bonus
Change in Control Bonus Percentage 180%
Multiplied by Base Salary as of Change
in Control Termination x $150,000
--------
Historical Average Cash Bonus is: $270,000
========
Step 6 - Determine Double Historical Average Cash Bonus
Historical Average Cash Bonus $270,000
Multiplied by 2 x 2
--------
Double Historical Average Cash Bonus is: $540,000
========
C-3
33
JOHANNSON L. YAP
EMPLOYMENT AGREEMENT (THE "AGREEMENT")
EXHIBIT D
A copy of the list of industrial and mixed office/industrial REIT and Real
Estate Operating Companies as published in the Realty Stock Review, a Dow Jones
& Co. publication, for the month prior to the Effective Date of the Agreement is
attached hereto.
D-1
5
1,000
6-MOS
DEC-31-2000
JAN-01-2000
JUN-30-2000
5,509
0
13,633
(2,050)
0
17,092
2,652,184
(236,483)
2,591,747
102,224
1,214,318
0
18
389
1,064,137
2,591,747
0
189,414
0
(54,026)
(44,290)
0
(40,076)
58,963
0
58,963
0
0
0
58,963
1.10
1.10
